07 March 2024

'Better late than never’: not in redundancy consultation

Nicola Evans Senior Associate
Man consulting with large group of employees

It is a long-established principle that it is the quality of consultation as opposed to the quantity of consultation that is important in a redundancy consultation process. An employer should always go into a consultation process with an open mind, still being capable of being influenced.

The key components of a fair consultation process are:

  • consultation when proposals are still at a formative stage;

  • adequate information on which to respond;

  • adequate time in which to respond; and

  • conscientious consideration of the response to the consultation.

Joseph de Bank Haycocks v ADP RPO UK Limited

The recent case of Joseph de Bank Haycocks v ADP RPO UK Limited serves as an important reminder for employers that consultation in a redundancy situation should take place at a formative stage.

In this case, the workforce was not consulted about redundancy proposals and the claimant was not provided with either the criteria for selection or his scores against the criteria, prior to being dismissed for redundancy. He was provided with this information on appeal.

The Employment Appeal Tribunal (EAT) held this was not reasonable and the dismissal was found to be unfair. The EAT also held that the fact that a full appeal took place at which the claimant was able to contest his scores, did not, in this case, correct the failure to meaningfully consult at the formative stage. It held that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s own scores), it could not repair [the] gap of consultation in the formative stage’.

The EAT went on to review the case law in this area and set out the following guiding principles for fair redundancy consultation:

  • The employer will normally warn and consult either the employees affected or their representative.

  • A fair consultation occurs when proposals are at a formative stage and where adequate information, and adequate time in which to respond, is given along with conscientious consideration being given to the response.

  • In consultation, the purpose is to avoid dismissal or ameliorate the impact.

  • A redundancy process must be viewed as a whole, and an appeal may correct an earlier failure making the process reasonable.

  • It is a question of fact and degree as to whether consultation is adequate, and it is not automatically unfair that there is a lack of consultation in a particular respect.

  • Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.

  • The use of a scoring system does not automatically make a process fair.

  • The relevance or otherwise of individual scores, will relate to the specific complaints raised in the case.

How is this case relevant to me?

This case highlights that not even an appeal can make up for a lack of consultation in the early stages of the process. The purpose of consultation is to consider whether it is possible to avoid dismissals or reduce the impact of the same and if consultation does not take place in the early stages, this cannot be replaced, and the opportunity is lost.

It is vital that meaningful consultation takes place to ensure that any redundancies made are ultimately found to be fair.

Nicola Evans, Wilkin Chapman LLP
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