In the scenario where an employer has treated an employee as being in a unique role and not considered pooling, should a Tribunal consider whether it was reasonable for the employer not to have considered developing a wider pool of employees?  The EAT case of Wrexham Golf Club Co Ltd v Mr G R Ingham confirms that this matter should be considered by a Tribunal when looking at the general section 98(4) reasonableness requirement. Whilst it is not the function of the Tribunal to decide whether they would have thought it fairer to act in some other way they must consider whether the dismissal lay within the range of conduct a reasonable employer could have adopted (Capita Hartshead v Byard/Williams v Compair Maxim Limited) and this is part and parcel of this consideration.

In practical terms, we would recommend that employer clients, in this scenario, when treating employees as being in a unique position give thought to and record their rationale as to why they considered it inappropriate to deal with a wider pool.