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Redundancy dismissal unfair where consultation did not take place at formative stage

on Wednesday, 13 December 2023.

The Employment Appeal Tribunal (EAT) has found that a redundancy dismissal was unfair in light of the absence of meaningful consultation at the formative stage of the process.



In the case of De Bank Haycocks v ADP RPO UK Ltd, there had been a reduction in demand for the claimant's role due to the COVID-19 pandemic. The decision was taken to reduce the workforce. The claimant's line manager was asked to score him against redundancy criteria before any wider communications took place with the workforce. The claimant was ranked last following the scoring exercise. Following the scoring exercise, a decision was taken to make two staff redundant.

A consultation procedure took place with the claimant. The procedure comprised of three meetings, in the last of which the claimant was given notice of the termination of his employment. During the consultation the claimant was unaware of how he had been graded in the scoring exercise and was not given his colleagues' scores as a comparison.

The claimant appealed against the redundancy. By the time of the appeal hearing he had been given his scores but not the comparative scores of his colleagues. He brought a claim for unfair dismissal.

Tribunal decision

The Tribunal dismissed the claim. It acknowledged that the claimant had not been given his scores during the redundancy consultation but considered that the appeal had been fair and remarked that the claimant had not demonstrated that he should have been ranked higher. The Tribunal also did not accept the claimant's criticisms of the selection pool or the redundancy criteria.

The claimant appealed to the EAT.

EAT outcome

The EAT allowed the appeal. It substituted a finding of unfair dismissal and remitted the case to the Tribunal to determine remedy. It was for the Tribunal to determine whether the employer acted reasonably in the dismissal. The absence of consultation at a formative stage in the process is indicative of an unfair process. The Tribunal is entitled to still find the dismissal fair overall but should provide an explanation, which it did not in this case.

In respect of the appeal process, the EAT found that to result in an overall fair process the appeal would have needed to fill any gaps in the earlier stage of the process. Here, whilst the appeal could provide the missing information (the scores), it could not repair the consultation gap that had occurred earlier in the process.

Learning points

The EAT emphasised that the commencement of consultation at a formative stage is one of the factors that is indicative of a fair process. However, it is possible to demonstrate overall fairness if this general requirement has not been met - for example if consultation at that stage would have been futile.

This case was determined on its facts. It does not mean that a decision to carry out scoring in advance of consultation is necessarily unfair.

Employers should take care to demonstrate that they have given the issue consideration, particular if there are circumstances which merit a different approach.

For more information or advice on redundancy issues, please contact Michael Halsey in our Employment team on 020 7665 0842 or complete the form below.


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