Court of Appeal clarifies consultation requirements in small scale redundancies
In a recent case, the Court of Appeal has confirmed that non-unionised employers are not required to conduct workforce-wide consultation in redundancy scenarios involving fewer than 20 employees.
Background
In the case of Haycock v ADP RPO UK Ltd, the claimant's role was affected by a downturn in demand due to the COVID-19 pandemic. The employer decided to reduce its workforce and the claimant's line manager scored him against redundancy selection criteria before any wider workforce communication took place. Consultation then began, consisting of three meetings. At the conclusion of the final meeting, the claimant was given notice of the termination of his employment. During this process, he was not shown his redundancy scores.
The claimant appealed his dismissal. By this time, he had been provided with his scores but not those of his colleagues. He subsequently brought a claim for unfair dismissal.
The Employment Tribunal dismissed the claim, concluding that although the claimant’s redundancy scores were not disclosed during initial consultation, this was remedied in the appeal process, which was deemed thorough. The claimant was unable to prove that his score was unfairly low or that the selection criteria were flawed.
EAT decision
The claimant appealed successfully to the Employment Appeal Tribunal. The EAT found that meaningful consultation had not occurred early enough in the redundancy process. Notably, the EAT commented that “good industrial relations practice” could entail workforce-wide engagement before individual consultations, regardless of the scale of redundancies. This led to uncertainty about whether such workforce consultation was expected for small-scale redundancy processes. The respondent appealed to the Court of Appeal.
Court of Appeal reinstates Tribunal decision
The Court of Appeal allowed the appeal, upholding the Tribunal’s finding that the redundancy process was fair. The Court confirmed that “general workforce consultation” is not mandatory in small-scale redundancies within non-unionised settings. Instead, it suggested that individual consultations could cover both personal and broader concerns in such cases.
The Court emphasised that consultation should begin when redundancy proposals are at a formative stage. It accepted the Tribunal’s finding that the redundancy appeal had corrected any procedural flaws, resulting in a fair process overall.
Learning points for employers
The Court of Appeal’s ruling reassures employers that general workforce consultation is not required in non-unionised small-scale redundancies. This case highlights that the fairness of redundancy processes depends on context: while group meetings may be helpful, they are not obligatory. Individual consultations should allow employees to address both personal and broader concerns, such as potential alternatives to redundancy.
In this instance, the employer was able to remedy procedural issues during the appeal. However, employers should be cautious in relying on appeals to address flaws in earlier stages. Although this case shows when it may be possible to do so, employers should aim to address procedural issues as early as possible in the redundancy process.
For more information or advice, please contact Jessica Scott-Dye in our Employment team on 0117 314 5652, or complete the form below.