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January’s Employment Law Digest – Redundancy Consultations – an important reminder

The Employment Appeal Tribunal have recently held that the absence of a meaningful consultation with the workforce in relation to a redundancy proposal at a formative stage, rendered a later dismissal for redundancy unfair.

In Joseph de Bank Haycocks v ADP RPO UK Limited [2023] EAT 129 the Claimant was not consulted about redundancy proposals before the employer’s pooling and scoring took place. A manager had ranked staff based on entirely subjective criteria. The Claimant was scored the lowest of the 16 people put at risk and was subsequently the only employee to be made compulsorily redundant. The Claimant was not provided with the criteria for selection or his own score before he was dismissed, although this information was provided on appeal. The Claimant’s appeal was unsuccessful, and he then brought a claim for unfair dismissal.

The EAT held that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the Claimant’s…scores), it could not repair [the] gap of consultation in the formative stage’.

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The following guiding principles for a fair redundancy consultation from various authorities were highlighted by the EAT:

  • The employer will normally warn and consult either the employees affected or their representative (Polkey).
  • A fair consultation occurs when proposals are at a formative stage, and where adequate information and adequate time in which to respond is given along with conscientious consideration being given to that response (British Coal).
  • In consultation, the purpose is to avoid dismissal or reduce the impact of redundancies (Freud).
  • A redundancy process must be viewed as a whole and an appeal may correct an earlier failing (Lloyd v Taylor Woodrow).
  • The ET’s consideration should be of the whole process, also considering the reason for dismissal, in deciding whether it is reasonable to dismiss (Taylor v OCS).
  • It is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect (Mugford).
  • Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process (Camelot).
  • The use of a scoring system does not make a process fair automatically (British Aerospace).
  • The relevance or otherwise of individual scores will relate to the specific complaints raised in the case (British Aerospace).

For more information about this case or other Employment Law issue, please contact Heather, or another of our Expert Employment Lawyers.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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