Employment Edit: 28 June 2024

Redundancy consultation

The EAT has reiterated that, in redundancy situations, consultation must take place at a time when it can potentially make a difference. 

The claimant, who was based in the North West, worked as a liaison officer fundraising for a charity. Three of his colleagues performed similar roles to him, but in different geographic locations. After community fundraising reduced during the COVID-19 pandemic, the claimant’s role was placed at risk of redundancy. He was placed in a pool of one and his colleagues in similar roles were not placed at risk. Following three consultation meetings, the claimant was dismissed by reason of redundancy. He brought an unfair dismissal claim, arguing (amongst other things) that consultation was not effective because it took place after he was placed into a pool of one and he was not consulted on the choice of pool.

Dismissing his claim, the tribunal found that the claimant’s role was unique, and he was in a self-selecting pool of one. However, the EAT disagreed, noting that consultation only took place after the key decision (identification of the pool of one) had been made. Consultation was not meaningful as the claimant could not make meaningful proposals about him being placed in a pool of one. The dismissal was therefore procedurally unfair. 

(Valimulla v Al-Khair Foundation)

Settlement of future claims

The EAT has confirmed that future claims can be validly settled under settlement agreements, as long as the terms of the agreement are sufficiently clear. 

The claimant had been absent from work as a result of ill-health since 2008. In 2012, he raised a grievance that included a complaint about him not having been placed on the respondent’s disability plan. The parties entered into a compromise agreement (the predecessor to settlement agreements), under which the claimant agreed to move onto the disability plan and to receive fixed disability salary payments. The agreement included a waiver of disability discrimination complaints, with a carve-out relating to future claims. Importantly, however, this carve-out did not apply to issues connected to the grievance or the claimant’s transfer to the disability plan. The claimant later sought to bring a disability discrimination complaint on the basis that his salary payments had not increased. 

The tribunal found that the claimant was barred from bringing this claim as a result of the terms of the compromise agreement. Upholding this finding, the EAT rejected the claimant’s argument that future claims cannot be waived under settlement agreements. Instead, it agreed with the findings from a similar case in the Court of Session in Scotland and held that future claims can be validly waived under qualifying settlement (or compromise) agreements, as long as the claims to be waived are identified using appropriately clear language. It did not make a difference that the claimant in this case was a continuing employee – there was nothing in principle preventing a waiver of future claims. As the claimant’s claims were covered by the wording of the waiver in the agreement, they were dismissed. 

(Clifford v IBM United Kingdom Ltd)