Did a failure to consult with the workforce, in relation to redundancy proposals at a formative stage, render a later dismissal unfair?

Yes, held the Employment Appeal Tribunal (EAT) in the recent case of Joseph de Bank Haycocks v ADP RPO UK Limited.

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 helpfully reviewed previous case authorities and set out the following guiding principles for fair redundancy consultation (which employers should have regard to): 

  • The employer will normally warn and consult either the employees affected and/or their representative.
  • A fair consultation occurs when proposals are at a formative stage, 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 or reduce the impact of redundancies.
  • A redundancy process must be viewed as a whole and an appeal may correct an earlier failing.
  • 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 make a process fair automatically.
  • Whether it is reasonable to show an employee the scores of others in a pool will be case-specific.