Redundancy process deemed unfair due to lack of consultation at formative stages

De Bank Haycocks v ADP RPO UK Ltd [2023] EAT 129 (Unfair Dismissal and Redundancy)

In a recent appeal to the Employment Appeal Tribunal (“EAT”), which concerned the adequacy of a consultation process in a redundancy situation, the EAT considered the relevance of workforce consultation during the formative stages of the redundancy proposals to the fairness of the dismissals.

Background

The Respondent is a recruitment company and a UK subsidiary of a United States parent company.  The Claimant was part of a team of 16 based in the UK. The team recruited employees for a client.  At the end of May 2020, as a result of the coronavirus pandemic and a corresponding reduction in demand at the client company, the decision was taken to reduce the workforce.

The Claimant’s manager was given some standard selection criteria from the US parent company for the purposes of undertaking the redundancy scoring process and was asked to assess the team members using the criteria.  The Claimant came last in all of the rankings.

On 19 June 2020, following conclusion of the scoring process, the Respondent set a timetable for the redundancy process.  The initial consultation would be held on 30 June 2020, followed by a consultation period of 14 days, with those whose employment was to be terminated being informed of this at a meeting on 14 July 2020.

The Respondent called the Claimant to a meeting on 30 June 2020.  The Claimant was told that there was a requirement for redundancies and that the purpose of the meeting was to inform him of the situation, and to allow him ask questions and suggest alternative approaches.  The Claimant was invited to a further meeting on 8 July 2020 and a final meeting on 14 July 2020 where he was handed a letter terminating his employment on the grounds of redundancy. At no point during the process was the Claimant provided with a copy of his scores, or advised what selection criteria he had been scored against. The Claimant was the only employee dismissed as a result of the process.

The Claimant appealed against the dismissal and complained that he had not been given any information about his scores or the selection criteria to enable him to challenge his scoring.  As part of the appeal process, the Claimant’s scores were made available to the Claimant, however he was not shown any of his comparators’ scores.

The Claimant’s appeal was unsuccessful and he subsequently brought a claim of unfair dismissal against the Respondent. The Claimant alleged that the dismissal was procedurally unfair and that the scoring criteria used by the Respondent was purely subjective. The Claimant argued that in order for the consultation process to be fair, he should have been provided with the relevant scores and been given an opportunity to comment on and challenge the scores given.

Judgment

The case was heard by the ET in July 2021.  The ET dismissed the Claimant’s claims on the grounds that although there may have been deficiencies in the initial process, these issues had been rectified at the appeal stage and the Claimant had not been able to demonstrate that his score should have been higher.

The Claimant appealed to the EAT and his appeal was upheld. The EAT held that there had been a lack of meaningful consultation at the formative stages of the redundancy pressure and noted that the absence of consultation at such a stage is critical as it does not give the employee an opportunity to discuss the possibility of avoiding redundancies at a time when they still have the potential to influence the employer’s decision. The EAT noted that although an appeal could correct any gaps in the individual consultation process (e.g. by providing the missing scores), it could not correct the lack of consultation at the formative stage of the process.

The matter was  remitted to the ET for a decision on remedy.