In Joseph de Bank Haycocks v ADP RPO UK Limited (2023), the Employment Appeal Tribunal (EAT) considered a redundancy consultation process (non-collective) and held that a failure to consult with the workforce at a formative stage rendered the dismissal unfair.
Facts
The Claimant worked as a recruitment consultant for ADP Ltd. He was part of a team of sixteen employees who carried out recruitment for an investment bank. When COVID hit, the bank’s requirement for recruitment services fell by around 50% and ADP Ltd decided to reduce its workforce. Scoring was carried out in June 2020. The Claimant received the lowest score and was invited to a meeting on 30th June at which he was told that there was a requirement for redundancies, and that he could ask questions and suggest alternative approaches. He was invited to a further meeting on 8th July and at a final meeting on 14th July, he was handed a letter of dismissal. The Claimant was not given the scores he had achieved or advised what selection criteria he had been scored against, and neither was he given the scores of the other fifteen as a comparison. He appealed but was unsuccessful. As part of the appeal process, the Claimant’s scores were made available to him, but he was not shown any of his comparators’ scores.
He then went on to bring a claim for unfair dismissal.
Tribunal
The Employment Tribunal rejected the Claimant’s claim. It found that although he was not given his scores until after his dismissal, the appeal process was carried out conscientiously (rectifying the flaws in the initial redundancy process), and he had not demonstrated that his score should have been higher.
The Claimant appealed to the EAT.
EAT
The EAT allowed his appeal, holding that although the appeal could have rectified the failure to have provided the Claimant with his scores prior to the dismissal, there had still been a lack of meaningful consultation at the formative stages of the redundancy, and this could not be rectified. Consultation is important because it gives the employee the opportunity to discuss the possibility of avoiding the redundancies at a time when they still have the potential to influence the employer’s decision.
The EAT noted that statute and case law outline that where there are representatives (i.e. in collective redundancy situations), they must be consulted at a formative stage. However, it is less clear where there are unrepresented employees. The EAT considered that a key element of any redundancy process, whether that be collective or non-collective, is that a reasonable employer will engage in consultation to minimise the impact of a redundancy situation, whether by avoiding dismissal or by limiting numbers affected.
Takeaway points
The EAT highlighted the need for what it terms “general workforce consultation” – giving all employees the opportunity to influence the employer’s decision at a formative stage of the process. On a practical level this means that genuine consultation is key and should begin at a point where the outcome of the redundancy can still be influenced by the workforce.
The EAT’s comments on the role of an appeal against dismissal should also be noted. While it is possible for an appeal to correct any missing aspect of the individual consultation process (in this case it was the failure to provide the Claimant with his scores), it cannot repair the failure to consult at the formative stage, and, in this scenario, by the time the Claimant was engaged in the consultation process all the decisions had already been made.
It is worth pointing out that where selection is involved, it is always best practice for employers to provide employees with details of the scoring criteria, their individual scores given and the score the employee would have needed to achieve to be provisionally saved from redundancy.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
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