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Facts: The employee, Mr De Bank Haycocks worked as a recruitment consultant in a 16-person team at his employer (ADP), dedicated to a single client, Goldman Sachs. Due to a significant drop in staffing demand during the Covid-19 pandemic, ADP decided to reduce the team’s size. It carried out a redundancy selection exercise using subjective criteria provided by its US parent company. The employee received the lowest score. A couple of weeks later the employer held the first redundancy consultation meeting with the employee. He was informed of the need for redundancies and invited to ask questions or suggest alternatives. He had one more meeting before being officially notified of his redundancy. He was not given his scores or those of his colleagues during the consultation.
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. Although he had not been provided with his selection scores before his dismissal, 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 said the dismissal was unfair. In particular, the EAT said that that meaningful consultation had not occurred sufficiently early in the redundancy process and that the employer should have consulted on a general and workforce-wide level first. It said that ‘collective consultation’ is a reflection of good industrial relations practice and that 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 (TULRCA) does not apply) employers should not overlook the ‘general workforce’ stage of consultation and proceed straight to ‘individual’ consultation.
The employer appealed.
Court of Appeal decision
The Court of Appeal allowed the appeal. It agreed with the Tribunal’s finding that the redundancy process was fair. It said that ‘general workforce consultation’ is not compulsory where there are less than 20 employees affected (within a non-unionised employer).
Rather, what consultation is appropriate should be considered on a ‘case-by-case basis. Although group meetings may be a useful way of finding out the views of employees, whether it is necessary depends on the circumstances. Where appropriate, individual consultations could cover both personal and more general issues.
However, whatever the circumstances, consultation should begin when redundancy proposals are at a ‘formative’ stage. This means at a stage when an employee can still influence an employer’s decision.
Implications: This is good news for employers. It removes the uncertainty (stemming from the EAT’s decision) and confirms that employers don’t have to hold ‘general workforce’ consultations for redundancies involving fewer than 20 employees (i.e. when TULRCA does not apply).
As long as employers start the redundancy consultation process early enough, it can be fair regardless of how this is carried out (whether via group or individual meetings). Although group meetings can be helpful, individual consultation meetings are usually enough to cover both shared concerns and individual issues.
Other learning points include:
5.0/5