Mrs Mogane was a nurse at Bradford Teaching Hospitals NHS Foundation Trust (the Trust), where she had worked under a series of fixed term contracts from 2016.
A new second nurse in a comparable position had been appointed on a two-year contract.
In 2019, Ms Mogane was invited to a meeting where she was told about the Trust’s financial difficulties. Shortly after, the Trust decided that Mrs Mogane should be made redundant because her contract was coming up for renewal.
By the time the Trust consulted with Mrs Mogane about the renewal of her contract, the Trust had already decided that she would be made redundant from her current role, and the remainder of the process involved the Trust attempting to find Mrs Mogane alternative employment. This was not possible, and Mrs Mogane’s employment with the trust ended in December 2019.
Mrs Mogane brought Employment Tribunal claims against the Trust, including for unfair dismissal. She was unsuccessful in the Employment Tribunal, so she appealed to the Employment Appeal Tribunal (EAT).
The EAT held that consultation should take place at the formative stage of a redundancy process, so it can be meaningful and genuine. For a process to be fair, consultation “should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome”.
The EAT noted that once the Trust had decided that the employee’s whose contract was up for renewal should be the person dismissed, it immediately identified Mrs Mogane as the person to be dismissed. Any consultation on the issue of dismissal from the existing role was rendered futile from the time that decision was reached.
The EAT held that Mrs Mogane’s dismissal was unfair, since she was effectively “chosen to be the employee dismissed before any consultation took place”.
Read the full judgment here
