Case of the week: Fulcrum Pharma (Europe) Ltd v Bonassera and another

Fulcrum Pharma (Europe) Ltd v Bonassera and another

FACTS

Mrs Bonassera was employed by Fulcrum Pharma (Europe) Ltd as an HR manager. She was supported by an HR executive. In April 2009, Mrs Bonassera was informed that she was at risk of redundancy. No such notification was given to the executive.

A period of consultation followed, during which Mrs Bonassera made clear her view that the executive should also have been placed at risk and should be the one to be made redundant. Mrs Bonassera argued that she could cover the executive’s work. Fulcrum considered this suggestion, along with various other options, but decided to dismiss Mrs Bonassera. She issued an unfair dismissal claim.

DECISION

The employment tribunal decided that Mrs Bonassera had been unfairly dismissed. Fulcrum had acted incorrectly in deciding that, as the role to be removed was that of HR manager, Mrs Bonassera should be the only person in the “at-risk” pool. In the tribunal’s view, the HR function was being reduced from two to one and Fulcrum should have placed both employees in the pool and selected one to remain in the executive’s role. Even though Mrs Bonassera had not specifically raised the question of pooling during the consultation process, it was nonetheless incumbent on the employer to address this issue.

The EAT agreed with the tribunal’s unfair dismissal finding, based on Fulcrum’s failure to consult properly and to consider the possibility of a pool of two. However, the EAT said that the mere fact that Mrs Bonassera had previously carried out the more junior functions and that the executive had “acted up” during Mrs Bonassera’s sick leave were not, by themselves, sufficient factors to dictate a pool of two.

The EAT confirmed its previous guidance that factors to consider when deciding if a subordinate employee should be brought into a pool are: whether or not there is a vacancy; how different the two jobs are; the difference in remuneration; the relative length of service of the employees; and the qualifications of the employee in danger of redundancy. Also, a starting point may be to determine whether or not the senior employee would consider the junior role at the reduced salary.

IMPLICATIONS

This decision emphasises how important it is for an employer to consider the issue of pooling and also to consult on this as part of a fair redundancy process. A pool should include all employees who carry out work of the particular kind for which the employer’s need has diminished.

However, it may need to be widened to include other employees, such as those whose jobs are similar to or interchangeable with those employees for whom there is a diminished need. It may also be prudent to explore, early on, with a more senior employee whether or not he or she would accept a more junior role at a reduced salary, so that the employer knows whether or not it may have to consider “bumping” as part of the redundancy process.

Nicholas Jew, partner, DLA Piper