UK: Redundancies on Workforce Consultation
Authors: Corinna Harris, Ruth Bonino, and Sophie Jackson
The Court of Appeal has ruled that there is no requirement for non-unionised employers to carry out general workforce consultation in small-scale redundancy processes.
Mr. De Bank Haycocks was employed in a team of 16 recruitment consultants in ADP’s London office when the Covid-19 pandemic led to their sole client implementing a recruitment freeze. Using selection criteria provided by the US parent company, the team was assessed, and after being ranked lowest, he was ultimately made redundant.
The tribunal dismissed his claim that his selection for redundancy was unfair. While it accepted that he knew nothing about his scores until his appeal, it concluded that a thorough investigation into his concerns about scoring had been carried out during the appeal, and he could not show that he had been unfairly selected for redundancy.
The EAT upheld the appeal and found that the dismissal was unfair because there had not been any meaningful consultation at a formative stage in the process. It also stated that in all redundancy situations, regardless of whether the threshold for collective consultation was met, it was good industrial relations practice to have “general workforce consultation”. ADP appealed.
The Court of Appeal allowed the appeal and restored the tribunal’s decision. It did not agree that there was a requirement for “general workforce consultation” in small-scale redundancies.
Key Action Points for Human Resources and In-House Counsel
Though this decision confirms that general workforce consultation over redundancies of fewer than 20 employees is not compulsory in non-unionised workforces, it makes it clear that what amounts to a fair redundancy process will always depend on the facts.
The Court also commented that during any redundancy consultation, it is good practice for employers to give employees the opportunity to comment both on issues which affect them individually as well as “workforce level” matters – such as the reasons why there were selected for redundancy and options for avoiding the redundancy respectively.
