Tue 05 Dec 2023

Is "general workforce consultation" needed for individual redundancy to be fair?

EAT provide useful guidance in relation to redundancy law.

The claimant in Mr Joseph De Bank Haycocks v ADP RPO UK Ltd was the sole employee to be made compulsorily redundant from his employer's recruitment business, the impact the Covid-19 pandemic indirectly had on the business leading to the redundancy situation.  The process followed by the business involved a selection process using a matrix of subjective criteria provided by the US parent company.  The claimant scored lowest of the 16 people who were at risk.

The scoring took place before the number of employees to be made redundant was decided upon - only 2 redundancies were to be made so there was no need for collective consultation (i.e. where there are 20 or more employees at risk).  At this stage the employees were not involved.  Thereafter, a timetable was set for the redundancy process with an initial meeting being followed by 14 days of consultation after which those selected for redundancy would be informed of their dismissal.  During this process 1 person volunteered for redundancy.  As the lowest scorer, the claimant was invited to an initial meeting where he was given the opportunity to ask questions and put forward alternatives, but he was not told his own score or the scores of his colleagues.  He attended a second meeting a week later, and a final meeting at the end of the 14 day period at which point he was handed a letter of dismissal.  His appeal against the decision to select him for redundancy was unsuccessful.  He was made aware of his score prior to the appeal but not his colleagues' scores.

An employment tribunal ("ET") found the dismissal to be fair despite the claimant not knowing his scores until shortly before the appeal.  Although the ET did not deal directly with the issue of consultation, it did find that the claimant's criticisms of the selection criteria and pool used were not borne out.

On appeal to the employment appeal tribunal ("EAT"), the claimant argued that the ET had failed to deal with the issue of consultation on the scores and the criteria that underpinned them.  It was at that stage that real change could have been considered, it was argued, and the absence of consultation at that stage meant that, from that point on, there was no possibility of any outcome other than the claimant's dismissal. 

The EAT upheld the appeal.  Although the internal appeal that took place could rectify the failure to have provided the claimant with his scores prior to his dismissal, it could not rectify the failure to consult at a formative stage. There was no indication in the ET judgment that there were good reasons not to have undertaken what the EAT described as "general workforce consultation".  The absence of that consultation was sufficient to make the dismissal unfair. 

So what did the EAT mean by "general workforce consultation"?  In reaching its judgment the EAT noted that employers acting within the reasonable band of responses follow good industrial practice, albeit that would vary from one workplace to the next depending on the particular circumstances.  It considered that the purpose of a collective consultation was a reflection of good industrial relations, but that it might be better described as "general workforce consultation" to remove the connotation of union representation.  What that looked like would vary but the important point was that it included the opportunity to have input from the workforce that could impact on the decision to make redundancies including the possibility of minimising the impact of a redundancy situation. 

At a practical level this case highlights that, irrespective of the size of the redundancy exercise, the reality of good industrial relations in the modern employment environment is that consultation should begin at a formative stage - i.e. where the outcome of a redundancy procedure can still be influenced by the workforce. 

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