The importance of consulting early in a redundancy situation
A recent Employment Appeal Tribunal (EAT) decision reminds us that it is vitally important that redundancy proposals are shared with employees at a formative stage. Failure to do so could make any subsequent dismissals unfair.
In Joseph de Bank Haycocks v ADP RPO UK Limited, neither the Claimant nor the wider workforce were consulted about redundancy proposals before employees were pooled and scoring took place. To make matters worse, the Claimant wasn’t provided with the selection criteria or his own scores before he was dismissed. This information was, however, provided on appeal. The EAT held that the Claimant’s dismissal was unfair. 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”.
The EAT helpfully reviewed previous authorities and set out the following guiding principles for a fair redundancy consultation:
- the employer will normally warn and consult the affected employees or their representative.
- consultation must begin when proposals are at a formative stage.
- the employee must be given adequate information and adequate time to respond to the proposals, with conscientious consideration being given to that response.
- the purpose of consultation is to avoid dismissal or reduce the impact of redundancies.
- a redundancy process must be viewed as a whole and a full re-hearing on appeal may correct an earlier failing.
- it is a question of fact and degree as to whether consultation is adequate. It is not automatically unfair that there is a lack of consultation in respect of a particular aspect of it, such as the provision of scoring.
- the use of a scoring system does not make a process automatically fair.
- whether it is reasonable to show an employee the scores of others in a pool will depend on the facts of the individual case.
Key take away points
Once redundancies are contemplated, employers must promptly warn those at risk of redundancy and start consultation. Consultation is designed to avoid dismissal or reduce the impact of redundancies, so ensure that employees are given sufficient information, and time, to respond to your proposals. Don’t rush the process!
