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Redundancy consultation should take place at a formative stage

In De Bank Haycocks v ADP RPO UK Ltd the Employment Appeal Tribunal (EAT) has allowed an appeal against an employment tribunal’s decision that a redundancy dismissal was fair where there had been no meaningful workforce consultation when redundancy proposals were at a formative stage.

What was the background?

Mr Haycocks was in a team of 16 people working at ADP on one specific client account, Goldman Sachs.  Demand for work fell sharply due to the pandemic and ADP decided to reduce the number of employees in the team.

What did ADP do?

Each employee in the team was scored against a matrix of 17 subjective criteria.  Mr Haycocks scored the lowest of all 16 employees.  The scoring took place actually before ADP had decided on the number of redundancies that would be required.  Mr Haycocks was called to an initial meeting to be told about the requirement for redundancies and that he could ask questions and put forward alternatives to redundancy.  He then had another meeting before a third one, at which he was dismissed.

How did Mr Haycocks respond?

Mr Haycocks was unaware of both his own scores and other employees’ scores for comparison.  He appealed the dismissal, complaining about this, saying his total score was too low and that the procedure was unfair, using completely subjective criteria.  At the appeal meeting Mr Haycock did have his scores, but still did not have the other scores for comparison.  He brought a claim in the employment tribunal (ET) for unfair dismissal.

What did the original ET decide?

The ET held that the appeal process ‘cured’ any fault in the original redundancy procedure.  Also, Mr Haycocks had not provided any evidence to show his total score should have been higher.  They therefore decided the redundancy was fair.  Mr Haycocks appealed to the EAT, stating the ET had not considered the requirement for consultation at a formative stage.

Why did the EAT overturn the ET’s decision?

The EAT considered other relevant cases and highlighted the fact that many employees have no formal representation these days.  It held there was a clear absence of consultation at the formative stage, agreeing with Mr Haycocks.  He was never given the opportunity to discuss alternatives to redundancy before the redundancy numbers had been determined.

Why is this case important for employers?

The case appears to impose a new obligation on employers to consult with employees at a formative stage, irrespective of whether collective consultation is required by law.  In response, it may be sensible for employers, particularly larger ones, to ask employees to elect representatives, even

If you have any questions about the above case, contact a member of the ViewHR team today.