Redundancy Consultation and Unfair Dismissal

The recent case of Joseph de Bank Haycocks v ADP RPO UK Limited has shed light on the importance of fair redundancy consultation. The Employment Appeal Tribunal (EAT) ruled that a failure to consult with the workforce at a formative stage amounted to unfair dismissal.

In this case, the claimant and other affected employees were not consulted before the redundancy pooling and scoring process occurred. In the context of redundancy, a pool is formed by grouping employees deemed “at risk,” and from this pool, individuals are selected for redundancy. However, in smaller businesses, if there’s only one person doing a specific job and they are at risk of losing their job, there’s no need for a redundancy pool.

Further to this, the criteria for selection and the claimant’s scores were not disclosed before the claimant was dismissed. Although this information was eventually given during the appeal process, the EAT maintained that the failure to consult at the initial stage of the process made the dismissal unfair.

Key Takeaways for Employers

The EAT emphasised that fair consultation must occur when redundancy proposals are at a formative stage. Adequate information should be provided to employees, giving them enough time to respond. This ensures conscientious consideration of their input before any decisions are made.

The purpose of consultation during a redundancy process is to avoid dismissals where possible or, at the very least, to reduce the impact of redundancies on affected employees. Employers should approach this process with the goal of finding alternatives to dismissal such as withdrawing job offers, reducing hours, placing people in alternative roles or implementing overtime freezes.

The EAT highlighted that a redundancy process must be viewed as a whole. While an appeal may correct certain deficiencies in the consultation process, it cannot repair a fundamental gap in consultation at the formative stage.

The adequacy of consultation is not a one-size-fits-all concept. It is a question of fact and degree, and what may be considered adequate in one case may not be sufficient in another. Employers should approach each situation with an understanding of the specific circumstances.

The use of scoring systems in the redundancy process does not automatically make the process fair. Employers must ensure that the scoring system is applied judiciously and that the overall consultation process is comprehensive and transparent.

When scoring employees in a redundancy process, it is essential to assign points based on various criteria, with each criterion carrying a specific weight according to the organisation’s priorities. For instance, if the organisation deems work performance more critical than attendance, the points allotted for each could be adjusted accordingly.

For example, a scoring system might rate outstanding work performance at 15 points, while a perfect attendance record is scored at 5 points. Sample scoring criteria include work performance, skills and competence, disciplinary record, and attendance record, with different levels of points reflecting varying degrees of achievement or adherence to set standards in each category.

Contact us to schedule your complimentary consultation.