Employment Law Coffee Break: AI and the workplace, redundancy 'pool of one', and our HR Pensions Spotlight for June

AI and the workplace 

HR will have a major role in the use and management of AI and to ensure skills and attitudes are matched by its safe and effective use. HR will have a role in creating and managing the new jobs and career paths for employees, with new expectations to manage and support. Guidance will also be required by managers and leaders in this technology-driven environment. You can read thoughts here on the impact of AI and HR from our recent roundtable, "AI in the Workplace – the Potential, the Pitfalls and the Risks", which was hosted by The HR World, sponsored by international legal practice Osborne Clarke and led by Anna Elliott, Partner at Osborne Clarke and Sue Turner OBE, the founder of AI Governance. 

Consultation required before an employer decided on a redundancy 'pool of one' 

The Employment Appeal Tribunal (EAT) has provided an important decision for employers to consider where a selection pool of one is proposed in a redundancy situation.

Here, the claimant had been identified as being at risk of redundancy as part of a nationwide redundancy process. The claimant performed a particular role in one particular geographical location; other employees performed the same role in other locations. The claimant was placed in a "pool of one" for redundancy selection and following his redundancy brought a claim for unfair dismissal. The tribunal found the dismissal was fair as the claimant's role was unique. 

The EAT overturned the decision. While the tribunal had found that the employer had established that the requirement for work of a particular kind had ceased or diminished, it had not established that the reason for redundancy arose from a reduction in the need for that specific work to be done at a particular location. 

The tribunal had failed to consider the employer's selection process and whether the approach adopted of placing the claimant in a pool of one was fair on the particular facts. The tribunal should have considered whether the employer genuinely applied their mind to the question of the pool from which the employees should be selected and determined whether the pool selected came within the range of reasonable approaches open to a reasonable employer. The tribunal here gave no reasons why it accepted the employer's assertion that the claimant's role was "unique" and therefore a pool of one was appropriate. 

The EAT also noted that, on the facts, consultation only appeared to have taken place with the claimant after the key decision – the identification of the pool of one – had been made. However, what was required was meaningful consultation. Here, three consultation meetings had taken place but it was not clear whether there had been consultation regarding this key issue "why he alone, was placed in a pool of one and selected as being at risk despite [others] performing similar work at different location". 

These consultation meetings also took place "after the time the Claimant could make meaningful proposals about him being placed in a pool of one. It took place after the decision had been made for him to be considered alone" and "consequently, it is difficult to see how consultation could be meaningful in respect of that important issue". However, as is clear from the authorities "consultation is a necessary ingredient of a fair process". 

What does this mean for employers? 

This case highlights the need for an employer to carefully apply its mind to the pool from which any employees will be selected for redundancy. Where a role performed by a single employee is at risk of redundancy, it can be easy to neglect to consider whether the pool should be cast more broadly, particularly with the increasing prevalence of hybrid working making the geographical location to which an employee is assigned less relevant to the determination of a fair selection pool. 

It will be important for employers to evidence meaningful consideration in this regard; the key is determining what role is at risk of redundancy and the specific duties and responsibilities of that role and whether others are performing the same or a similar role and should form part of the selection pool. 

Following on from another recent EAT decision, this decision also emphasises that consultation at a point at which any redundancy proposals can be influenced by the consultation process, is essential for a fair redundancy process. Once a decision has been made, fair consultation cannot take place. The EAT notes that "meaningful consultation does not mean simply informing staff about a decision or proposal, giving them opportunity to make representations, and then putting into effect the proposal or decision which had, in truth, already been made. Meaningful consultation means setting out a provisional proposal, along with the rationale, and providing an opportunity for feedback, comments or observations. A decision maker should consider the responses elicited through consultation with an open mind, considering whether they alter the initial proposal and why that is, if not, why not, but only then making a decision". 

As previously reported, the Labour Party's plan to work make pay contains a proposal to trigger collective consultation across a business rather than using the narrower parameter of a single establishment. This would see an increase in the requirement for collective consultation on proposed redundancies for many employers, and again emphasises the key role that consultation plays in the redundancy process and that it requires careful consideration of who is affected by redundancy proposals. 

HR pensions spotlight for June: Automatic enrolment – how can employers reduce their risk of non-compliance? 

The Pensions Regulator takes a lot of enforcement action in connection with automatic enrolment. This high level of activity demonstrates that automatic enrolment compliance is not always straightforward. 

In our Insight we look at some common problem areas and suggest actions employers can take to help reduce the risk of errors. If you would like more information or to discuss your arrangements with a specialist, please contact Claire Rankin or your usual Osborne Clarke contact