The Employment Appeal Tribunal (EAT) has urged employers who need to make only a small number of redundancies to make sure that their consultation process doesn’t end up being a ‘tick box’ exercise.
Recent indications from several recent EAT cases show that employers are expected to consult, at an early stage, about all aspects of a proposed redundancy – including selection criteria and pooling.
Joseph de Bank Haycocks v ADP RPO UK Limited
In Joseph de Bank Haycocks v ADP RPO UK Limited, the EAT held that a redundancy dismissal was unfair because of the lack of consultation at an early stage. In this case, much of what was missing from the consultation process (including selection criteria and scoring) was produced at appeal, but it was notably absent at the outset of the consultation. The EAT noted 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’.
Valimulla v Al-Khair Foundation
This focus on the start of the redundancy consultation process being critical to the overall fairness of the result was continued recently in the case of Valimulla v Al-Khair Foundation. This case was brought by a liaison officer covering the North-West of England.
Work for liaison officers decreased across the country during the Covid pandemic. The employer put the liaison officer for the NW at risk of redundancy in a pool of one. There were other liaison officers in similar roles across other geographic locations, but their jobs weren’t placed at risk. Three consultation meetings were held. There was no consultation about the appropriateness of the pool. The employee who was dismissed claimed unfair dismissal.
The employment tribunal held that he had been fairly dismissed for redundancy, but he appealed. The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The company had not consulted with the liaison officer about the pool for selection. And in this case, the tribunal had also failed to consider whether choosing a pool of one was a reasonable approach.
The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. It remitted the question whether it was reasonable for the employer to have applied a pool of one to a different tribunal.
This case is a clear reminder that employers should involve employees and invite their views on all aspects of any redundancy process early on and throughout the process when their input can make a difference.
