Fulcrum Pharma (Europe) Ltd v Bonassera and anor 22.10.10 EAT/0198/10/DM
Mrs Bonassera was employed by Fulcrum Pharma (Europe) Ltd ("Fulcrum") as HR Manager. She took up that position in 2007 when Fulcrum acquired another company where Mrs Bonassera was already HR Manager. She had previously held the position of HR Executive/Office Manager in that company. Following the acquisition, a Mrs Carter joined Fulcrum as HR Executive, supporting Mrs Bonassera.
Mrs Bonassera was absent from 11 November 2008 until 9th February 2009, undergoing and recovering from heart surgery. During that absence, Mrs Carter "acted up", taking on some of Mrs Bonassera's duties.
At a meeting on 17 April 2010, Mrs Bonassera was told that she was at risk of redundancy, and that there were no suitable alternative vacancies. The next day, Mrs Bonassera made plain her view that both she and Mrs Carter should have been at risk of redundancy, but on 20 april Mrs Carter was told she was not at risk. At a meeting on 27 April, Mrs Bonassera made a counter-proposal whereby the two HR roles would be combined and Mrs Carter would be dismissed. She proposed to work only four days a week instead of five, and to be paid pro rata. Fulcrum had prepared written answers anticipating questions about pooling the two HR employees, but in the event the subject was not raised by either party at the meeting. The counter-proposal was rejected at a subsequent panel meeting, and Mrs Bonassera was informed on 30 April that she would be dismissed.
Mrs Bonassera brought a claim of unfair dismissal, and represented herself before the tribunal. the tribunal found that Fulcrum had identified Mrs Bonassera's post as redundant, and had decided that the occupant of that post - Mrs Bonassera - would automatically have to be dismissed. That was outside the range of reasonable responses. Moreover, the tribunal concluded that a reasonable employer would have included both employees in a pool and conducted a selection exercise to determine which employee should stay. The likelihood of Mrs Bonassera not being dismissed was a further question to be answered at a remedies hearing. Fulcrum appealed.
Appeal on liability dismissed
Referring to Taymech Ltd v Ryan [1994] UKEAT/663/94, the EAT decided that "the tribunal were correct in finding that [Fulcrum] were in error in automatically determining because the manager's role had to go, the pool was therefore one without any further or meaningful consultation as to the size of the pool." Accordingly, the finding of unfair dismissal would stand.
Reconsideration/more detailed reasons required on reasonable pool
Insofar as the tribunal had begun to consider remedy issues in terms of assessing the chance that Mrs Bonassera would have remained in employment if Fulcrum had acted reasonably, the EAT decided that the tribunal ought to revisit its conclusion that a reasonable employer in this case would have used a pool including both Mrs Carter and Mrs Bonassera. This was because the tribunal had apparently reached that conclusion without thinking about the relevant factors that a reasonable employer ought to take into account when deciding on whether to include a more junior employee in a pool with a more senior employee. The EAT in Lionel Leventhal Ltd v North UKEAT/0265/04 suggested (in the context of a "bumping" dismissal) that these factors might include " (1) whether or not there was a vacancy, (2) how different the two jobs are, (3) the difference in remuneration between them, (4) the relative length of service between them, (5) the qualifications of the person in danger of redundancy, and no doubt there are other factors which may apply in a particular case." The EAT in Bonassera suggested for its own part that the consultation process might usefully begin by determining whether the more senior employee would accept the more junior post at the lower salary.
According to HHJ Ansell, "Clearly however, the finding of unfair dismissal must stand, based on [Fulcrum]'s failure to properly consult with [Mrs Bonassera] and to properly consider the possibility of a pool of two". The tribunal will have to take into account the various suggested factors at the remedies hearing, when determining what would have happened as a matter of hypothetical fact if Fulcrum had acted reasonably.
Douglas Leach, counsel for Mrs Bonassera.
http://www.employmentappeals.gov.uk/Public/Upload/10_0198rjfhSBDM.doc
