When the Employment Appeal Tribunal handed down its judgment in the case of Haycocks v ADP RPO last year it caused something of a stir. Last week, we got the judgment from the Court of Appeal.
The case concerned a redundancy dismissal in a situation where fewer than 20 redundancies were contemplated so collective consultation obligations were not engaged. The Claimant was found to have been unfairly dismissal. The EAT accepted that a redundancy situation existed but held that the dismissal was procedurally unfair because the Respondent had failed to consult with the Claimant and the wider workforce about the prospect of his redundancy ‘at a formative stage’.
The Claimant and the wider workforce were not consulted about redundancy proposals before pooling and scoring took place. The criteria for selection and the Claimant’s own scores were not provided to him before his dismissal. This information was, however, provided on appeal. The EAT held that the failure to consult at a formative stage meant that the dismissal was unfair. The EAT held that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.
The EAT held that, even in non-unionised workplaces, general workplace consultation was a requirement of good industrial practice (and, by extension, a fair redundancy process). The idea of wider workforce consultation being required at a ‘formative stage’ (unless a good reason could be given for not doing it) went further than many employers thought the law required – effectively bringing collective aspects into what is an individual process.
The Court of Appeal, allowing the Respondent’s appeal last week, confirmed that it should not be assumed that a dismissal will be unfair where there is no ‘general workforce consultation’. The fairness of a consultation must be assessed on a case-by-case basis. The Court of Appeal’s judgment means we are in an ‘as you were’ position where an individual (rather than collective) redundancy situation occurs. Employers can breathe a sigh of relief.
The Court of Appeal provided some helpful pointers to employers seeking to put together a fair non-collective redundancy process:
- It is good practice to seek views of employees on any issue which may affect the risk of their dismissal. This can be done as part of individual consultation and does not have to be done at ‘general workforce’ level.
- The principle, from R v British Coal Corporation ex p Price, that fair consultation means “consultation when the proposals are at a formative stage” does apply to individual redundancy dismissals. However, what matters is that consultation takes place at a point at which the employee can realistically still influence the decision. It does not mean that, as soon as the matter is discussed at Board level, the workforce needs to be brought in for comment.
- It is good practice to give employees at risk of redundancy an opportunity to comment upon the selection criteria to be used before any scoring/selection exercise is undertaken. However, a failure to do so will not inevitably result in the redundancy process being unfair.
Key practical takeaways from the Court of Appeal’s decision which HR Professionals can use to structure non-collective redundancy processes going forward:
- Providing the selection criteria for comment before they are applied is always a good idea. There is no obligation to change the criteria in response to employee comment but asking for comment can help create an impression that this is a process which is being undertaken collaboratively.
- Use language carefully. All communications associated with a redundancy process should refer to ‘proposals’ rather than a ‘decision’ up until the point of dismissal. Scripts for consultation meetings should include prompts for discussion on the underlying reason for the proposals and the possibility of the employee suggesting alternative options.