A fair redundancy process requires consultation of affected employees at a formative stage when there is at least the potential for them to influence the outcome. The Employment Appeal Tribunal (EAT) succinctly made that point in finding that a recruitment consultant in the banking sector was unfairly dismissed (Haycocks v ADP RPO UK Ltd).
The employer experienced a downturn in business due to the COVID-19 pandemic. A decision was taken that redundancies were required amongst members of the employees 16-person team. A scoring process was conducted in accordance with entirely subjective criteria set by the US parent company. The employee came lowest in the rankings.
Only after the scoring was complete, was a timetable set for the redundancy process and a decision taken as to how many employees would lose their jobs. The employee attended a succession of consultation meetings but was ultimately dismissed.
Rejecting his unfair dismissal claim, an employment judge found that the employee was not able to demonstrate that he should have been scored more highly. The scoring process was carried out in good faith and was not affected by any conscious bias. His internal appeal against his dismissal was found to have been conscientiously handled.
The EAT allowed the appeal. The Employment Tribunal (ET) had overlooked aspects of the issue of consultation in its deliberations. It is for the ET to conclude whether the decision to dismiss for redundancy is reasonable or not within the meaning of Section 98(4) ERA 1996. However, in doing so an ET has available to it guidance as to the general principles provided. The ET is entitled to depart from that guidance where a decision to dismiss an employee is reasonable but should, in those circumstances, provide an explanation as to why the decision was reasonable despite the general principles. An important general principle is that consultation in a redundancy situation should take place at a formative stage where an employee or representative is given adequate information and time to respond and where genuine consideration is given to the response. The consultation in this case took place at a much later than the formative stage and the ET erred in concluding that the consultation carried out was reasonable in the absence of any explanation as to why the general approach did not apply. The appeal undertaken by the employer did not correct the failure to meaningfully consult with the employee at the formative stage and so the dismissal was unfair.
The manner in which a redundancy process is conducted is vitally important to the fairness of any decision to dismiss an employee by reason of redundancy, even if there is a genuine redundancy situation. Should you require any advice or assistance with carrying out a redundancy process, please contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk on 08081668860.
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