Haycocks v ADP RPO UK Ltd [2024] EWCA Civ 1291
In this case, the Court of Appeal (“CA”) has clarified the scope of redundancy consultation and confirmed that employers do not need to carry out "general workforce consultation" in small-scale redundancy dismissals.
The Claimant was an employee of the Respondent, a recruitment process outsourcing business. Due to a downturn in work during the pandemic, the Respondent decided to make redundancies in the Claimant’s team. The 16 affected employees were each assessed using a "redundancy selection criteria matrix” that comprised 17 criteria. The scoring was completed before the Respondent had decided how many employees would be made redundant and before any consultation took place. The Claimant, who had the lowest score, was made redundant following a consultation process. During that process, three consultation meetings were held with the Claimant, but he was unaware of his selection scores, and how they compared to others in the pool, until his appeal. The Claimant argued that he was not given a chance to challenge the scores or express his views during the consultation process, and he subsequently claimed unfair dismissal.
The Employment Tribunal rejected the claim. It accepted that the Claimant did not know anything about his scores until after his dismissal but concluded that the Respondent had carried out a conscientious investigation into his concerns about scoring during the appeal. It therefore decided that the procedure was fair. On appeal, however, the Employment Appeal Tribunal (“EAT”) upheld the Claimant’s appeal and ruled that a lack of general workforce consultation at the “formative” stage of the redundancy process (and with no good reason why this had not been carried out for the proposed redundancy) made the dismissal unfair. It stated that workforce level consultation was a requirement of good industrial relations practice in all redundancy situations (together with individual consultation) including in non-unionised workplaces and where statutory collective consultation was not triggered. The Respondent appealed to the CA.
The CA overturned the EAT's decision. It ruled that the EAT had been wrong and there was no requirement for general workforce consultation in smaller-scale (i.e. fewer than 20) redundancies in non-unionised workplaces, which it stated was unworkable for a number of reasons. The CA stated that each redundancy situation should be examined on a case-by-case basis and there was no justification for creating a presumption that a dismissal without such consultation will be unfair, citing fundamental differences between situations where collective consultation was required, for example by statute, and where it was not.
The CA further clarified that "formative" consultation should occur when it could potentially alter the outcome. Although it was (in this case) deemed to be bad practice to score employees before starting the consultation, this did not necessarily make the process unfair since the Claimant had a real opportunity to challenge the criteria and scoring during the appeal process. As a result, the court ruled that the Respondent had (when viewed overall) conducted a fair redundancy process and the dismissal was therefore fair.
Whilst this case clarifies that employers do not need to carry out general workforce consultation for individual redundancies, it also acts as a reminder that consultation should still take place at a formative stage of the process, i.e. at a point when an employee can still influence the decision. It therefore emphasises the importance of considering each case individually. Moreover, (as the CA commented), good practice involves allowing an employee to comment on selection criteria before any scoring is carried out and to give them their scores during the consultation process. However, failing to do that will not necessarily make the redundancy process unfair if the employer is open-minded and prepared to reconsider the criteria and selection during the process.