The EAT has held in Joseph de Bank Haycocks v ADP RPO UK Ltd that an individual employee was unfairly dismissed for redundancy in circumstances where the employer failed to carry out meaningful workforce consultation at a formative stage of the redundancy process.
Basic facts
Mr Haycocks was a recruitment consultant for ADP UK Ltd, a UK subsidiary of an American company. He was one of 16 members of staff employed to recruit employees to one particular investment bank. As a result of the COVID-19 pandemic, the demand for new employees reduced substantially, and at the end of May 2020, ADP decided to reduce its workforce.
At the beginning of June, the UK manager initiated the process using a standard selection matrix required by the American parent company and applied 17 subjective criteria to assess the team scoring them between 1 and 4. Mr Haycocks scored the lowest.
On 18 June, it was decided that there would be two redundancies, so the team size was reduced from 16 to 14. Mr Haycocks was called to a meeting on 30 June and informed of the requirement for redundancies. He was told he could ask questions and suggest alternative approaches to reducing demand. After a further two consultation meetings on 8 and 14 July, he was handed a letter of dismissal. He was not provided with his scores until just before his appeal in August which was unsuccessful.
He subsequently claimed unfair dismissal, arguing that the procedure was unfair as he had not been given information about his scores until after his dismissal.
Tribunal decision
Whilst acknowledging that Mr Haycocks was unaware of his scores until after he had been dismissed, the tribunal concluded that the appeal process had been done “conscientiously” in the sense that his manager had carried out the scoring process in good faith and there was no evidence of any conscious bias. Nor could he demonstrate that his score should have been higher.
Mr Haycocks appealed arguing, among other things, that there had been a lack of consultation prior to the scoring exercise and the tribunal had not properly considered the failure to consult.
EAT decision
Upholding the appeal, the EAT carried out a review of the case law and noted a guiding principle - that the band of reasonable responses which apply in a redundancy situation requires employers to follow good industrial relations practice.
While the substance of what amounts to good practice will vary depending on the type of employment, the workforce, and the circumstances of the redundancy situation a reasonable employer will seek to avoid dismissal by engaging in consultation.
The EAT recognised that the nature of employment has changed radically since the 1980s in two significant ways: a reduction in trade union membership and a growth in the international element of corporate structures. In relation to the former, the EAT considered that good industrial relations in the modern employment environment required collective consultation at the formative stage of a redundancy situation so that the workforce had an opportunity to propose other means of reducing its impact. This was not limited to large-scale redundancies but applied equally to smaller redundancy exercises.
In relation to the international dimension, the EAT considered that collective consultation at the workforce level was significant in circumstances such as this where the use of American selection criteria did not reflect a recognition of good industrial relations practice in the UK.
As there was a clear absence of collective consultation at the formative stage of the redundancy process and as there was nothing in the judgment to indicate that there were good reasons for the employer not to consult on the proposals at the workforce level, the EAT held that Mr Haycock was unfairly dismissed.
The EAT referred the case back to the tribunal to consider what the remedy should be.
Comment
This is an important decision as it means employers should enter meaningful collective consultation with the workforce where any individual employee is at risk of redundancy.