If the decision is made before you’re consulted, it isn’t real consultation
“Both dismissals unfair: a pool of one must survive genuine consultationA process your employer is required to carry out before making significant decisions that affect you, most commonly redundancy. It must be genuine, meaning your employer must listen and consider what ... before being treated as settled, not after.”
A redundancyA dismissal that occurs when your employer no longer needs the work you do, either because the business is closing, a workplace is closing, or the requirement for employees to carry out that kind of w... pool of one survives scrutiny only if the reason for it was genuinely open to challenge during consultation, not decided beforehand or left undiscussed throughout.
- Ask specifically whether the reason you alone were selected for the pool was ever discussed before the decision was treated as final.
- The number of consultation meetings you had doesn't matter if none of them actually addressed the pooling decision itself.
- If a single, narrow criterion decided both your pool and your selection before you were consulted, that's a strong sign of an unfair process.
The situation
Two separate cases, two years apart, produced the same story with different details.
In the first, a nurse and a colleague did similar work on a series of fixed-term contracts. When her employer needed to make cuts, it decided she alone would be selected, using a single criterion: her contract happened to be due to expire first. That decision was made before her consultation meeting even took place.
In the second, a fundraising officer for a faith-based charity was one of several people doing the same role at different locations. When the charity's income fell during a period of financial strain, it held three consultation meetings with him before making him redundant. At no point in any of those meetings did anyone discuss why he alone, rather than his colleagues doing the same job, had been placed in the pool.
What the tribunal found
Both cases reached the same conclusion by the same route. A selection pool of one person isn't automatically unlawful. But it has to survive genuine consultation before it's treated as settled, not be decided first and explained afterward.
In the nurse's case, the tribunal found the sole selection criterion had already fixed both the pool and the outcome before any consultation happened, so nothing she said could have changed anything. In the fundraiser's case, three consultation meetings happened, but none of them ever addressed the pooling decision itself, so the EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. questioned how the process could be called meaningful at all.
Both tribunals were clear: consultation has to happen at a stage when the outcome is still genuinely open, and it has to actually engage with the decisions that matter, not just go through motions around a decision already made.
For the wider legal framework around when and how consultation has to happen, see our guide on collective redundancy consultation. A related case, scoring candidates before consultation starts, looks at the flip side: when early scoring doesn't automatically make a process unfair.
Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139. Valimulla v Al-Khair Foundation [2023] EAT 131. Employment Appeal Tribunal.