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Tag: redundancy consultation

Did a failure to consult about redundancy proposals with the workforce at a formative stage, make the employee’s dismissal unfair?

Yes it did, said the EAT in Joseph de Bank Haycocks v ADP RPO UK Limited available here.


Facts: The employee, Mr De Bank Haycocks, was a recruitment consultant for the employer (ADP) and worked in a team of 16 which recruited for one single client (Goldman Sachs). By the end of May 2020, Goldman Sachs’ demand for new staff had dropped significantly due to the pandemic and ADP decided it needed to reduce the number of employees in the team.

At the beginning of June 2020, ADP undertook a scoring exercise for all members of the team. It used specific subjective selection criteria (provided by its US parent company) and the employee was scored the lowest. On 18 June, ADP decided it needed to reduce the team by two employees and on 19 June, ADP set the timetable for the redundancy process. This would commence with an initial consultation meeting with employees on 30 June 2020 to be followed by a consultation period of 14 days and ending with the redundant employees being notified on 14 July 2020.

At the employee’s initial consultation meeting (on 30 June 2020) he was told that there was a need for redundancies and that he could ask questions and suggest alternatives. He had one further meeting before being notified of his redundancy at a final meeting on 14 July 2020. At this time he was not told his selection scores or given his colleagues’ scores as a comparison.

The employee appealed against the redundancy. By the time of the appeal hearing he had been provided with his selection scores, but not those of his colleagues. He was unsuccessful at appeal and brought a Tribunal claim for unfair dismissal.

Tribunal decision:  The Tribunal said the employee had been fairly dismissed. It acknowledged that  he had not been provided with his selection scores before his dismissal but found that this procedural flaw had been rectified at the appeal stage.

The Tribunal also did not accept the employee’s criticisms of the selection pool or the redundancy criteria and the employee was unable to show that he should have scored higher than he actually did.

The employee appealed to the EAT. He argued that the Tribunal had failed to consider the issue of consultation adequately – particularly that the employee (and the wider workforce) had not been consulted about redundancy proposals before pooling and scoring took place.

EAT decision:  The EAT held that the dismissal was unfair. The failure to consult at a formative stage meant that ADP had not followed good industrial relations practice and had therefore not acted within the band of reasonableness. The EAT also said that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the employee’s…scores), it could not repair [the] gap of consultation in the formative stage’.

The EAT reviewed previous authorities and set out the following guiding principles for fair redundancy consultation:

  • The purpose of consultation is to avoid dismissal or reduce the impact of redundancies and the employer should normally warn and consult (either with the employees affected or their representative(s)) when redundancies are on the horizon.
  • Collective Consultation is a reflection of good industrial relations practice in both unionised and non-unionised workplaces. Even where there are fewer than 20 employees affected (and so the statutory process set out in the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply) employers should not overlook what might be considered the ‘general workforce’ stage of consultation and proceed straight to ‘individual’ consultation.
  • A fair consultation occurs when proposals are at a formative stage and where the employee is given adequate information and time to respond (along with conscientious consideration being given to that response).
  • A redundancy process must be viewed as a whole and an appeal may correct an earlier failing.
  • 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.
  • Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.
  • The use of a scoring system does not make a process fair automatically.
  • Whether it is reasonable to show an employee the scores of others in a pool will be case-specific.

The EAT noted that whilst in the past, redundancy consultations tended to focus on methods of selection or redundancy packages, in more recent years consultation has sometimes resulted in a broader range of outcomes such as a workforce agreeing to take a pay cut or generally reduce their hours to avoid redundancies.With this in mind, the failure to consult with employees at a formative stage prevents other outcomes from even being considered.


Even in redundancy situations involving fewer than 20 employees, to ensure a fair process is followed, employers should consult with employees (on a general workforce level) and do so whilst the proposals are at a formative stage. This is because a fair process should allow employees the opportunity to influence the employer’s decision to make redundancies, or at least reduce their impact. If employers decide not to do so, then they should make sure they have good, well-documented, reasons for this (e.g. the consultation would be futile).


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