In the February 2012 decision in Capita Hartshead v Byard the Employment Appeal Tribunal (EAT) looked at a selection pool of one and found that a dismissal from such a restricted pool was unfair where an employer had not genuinely applied its mind to the question of what the pool for selection should be.
Hard on the heels of that case came Halpin v Sandpiper Books Ltd, which also looked at a selection pool of one. The employer was a book distributor which wished to expand its business in China. It employed Mr Halpin to work as a sales manager there. It had no other presence in that country. When it decided to close its office in China and use established local agents instead, it decided that there was only one employee at risk of redundancy and dismissed him after a consultation process which failed to identify opportunities to redeploy him. He claimed unfair dismissal, on the basis that restricting the pool to the only employee in China was unreasonable.
In upholding the finding that there was no unfairness in restricting the pool to employees based in China the EAT emphasised that establishing a pool for selection is a matter for management and very difficult to challenge, and that “in legal if not grammatical terms [it is] correct to say that the selection of the Claimant as from of a pool of one was right”. It was relatively easy for the employer to apply its corporate mind to the pool in Halpin where just the one manager had been sent out to China, and the entire operation – consisting of one person – was to be shut down. It was not so easy in Capita Hartshead, where four actuaries worked in the same office, and the choice of pool seems to have been influenced by the fact that the numbers of particular types of clients handled by one of the actuaries was diminishing, while others doing similar work were not losing clients – and no real consideration was given to whether clients would be unhappy if their work was transferred.
The lesson for employers, from reading the two cases together, is that they need to apply their minds to the size of the pool for selection, and make sure that they can show that they have done so.