You’ve probably got under your belt that consultation is key in terms of redundancy exercises. A recent case reminds us of quite how important it is. There’s been a trend in recent years of people trying to short cut the processes, undertaking some kind of assessment exercise, scoring people and taking that information to the lowest scoring individuals, perhaps in an effort to reduce the destabilising effect of pool situations, where a group of people is being placed at risk of redundancy together and have to wait while the process is followed to understand whether or not they are safe.

I’ve always felt that this was a risky approach and this was confirmed in the recent case of Mr Joseph De Bank Haycocks v ADP RPO UK Ltd.

In this case, the claimant and the wider workforce were not consulted about the redundancy proposals before the pooling and scoring took place. The criteria for selection and the claimant’s own scores were not provided to him before his dismissal. However, he appealed and was later provided with this information.

The Employment Appeal Tribunal found that a failure to consult at a formative stage meant that the dismissal was unfair. The appeal stage had corrected the flaw in the earlier process, when it came to providing his scores, but that did not correct the flaw with regards failing to consult. The EAT helpfully reviewed all of the authorities 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 representatives on their behalf.
  • A fair consultation occurs when proposals are at a formative stage (my emphasis added) and where the employee is given adequate information and adequate time to respond along with conscientious consideration being given to that response.
  • In consultation, the purpose is to avoid dismissal and reduce the impact of redundancies (again my emphasis added) so skipping ahead like this employer had, denied that opportunity entirely.
  • The redundancy process must be viewed as a whole and so it is right that an appeal may correct an earlier failing. This reiterates the importance of appeals. Again there seems to have been a trend in recent years of employers neglecting to offer this stage.
  • It’s a question of fact and degree as to whether the consultation is adequate. It won’t automatically make a dismissal unfair that there is a lack of consultation in a particular respect, and in terms of particular aspects of consultation, such as the provision of scoring, isn’t an essential ingredient to a fair process. However, the Tribunal is going to be looking at the consultation in the round, given that meaningful consultation is about information being provided and views listened to, prior to decisions being made. If an employer has skipped any of those things then it may cause problems.

It’s also worth noting that the EAT commented that whether or not it is reasonable to show an employee the scores of others in a pool will be case specific. Our advice would normally be to show the individual their own personal scores and let them know where they fall in terms of the range of scores given to others. For example, you might say “you scored bottom of 30, those potentially safe from selection scored between 60 and 75”. This then enables the individual to understand the context as to where they fit and how far apart they are from others in terms of scoring. Obviously this would be most important to individuals where scoring is very very close.

You may need to consider in your redundancy selection process, what tie-breakers are used if people do score the same.

Refreshing Law
December 2023