The EAT put the cat amongst the pigeons in November 2023 when it handed down a judgment suggesting that, general workforce consultation was needed for an individual redundancy to be fair. In other words, introducing a requirement to consult with the wider workforce at a formative stage of redundancy planning even though the trigger for collective consultation was not met.
Background
The claimant was made redundant after scoring the lowest out of 16 workers who were considered to be at risk of redundancy. The employer used a selection process based on a matrix of subjective criteria provided by its US parent company. The scoring took place before the number of redundancies to be made was decided upon, but numbers were not high enough to trigger collective consultation procedures. As the lowest scorer, the claimant was invited to a consultation meeting and given the opportunity to ask questions and put forward alternatives. Neither his score nor those of his colleagues were shared with him. At a second meeting 14 days later he was dismissed, and his appeal was unsuccessful. The employment tribunal ("ET") found the dismissal to be fair.
The employment appeal tribunal ("EAT") upheld an appeal on the basis that there had been an absence of consultation at a formative stage (when the original scoring took place). The EAT suggested that in order for the dismissal to be fair, the employer should have undertaken "general workforce consultation", that would have been good industrial practice, and employers acting within the band of reasonable responses follow good industrial practice.
Court of Appeal judgment
The Court of Appeal has upheld the employers appeal - Haycocks v ADP RPO UK Ltd. In doing so it held that the EAT was wrong to suggest that a "general workforce consultation" giving employees the opportunity to comment on issues affecting the workforce as a whole (in a situation where a statutory collective consultation was not required) was a requirement of good industrial practice, or "the usual standard" as the EAT had termed it. However, it would be good practice for employees to be given the opportunity to express views during their individual consultation meetings on matters that affect them individually and that may affect the workforce as a whole.
The Court reiterated that what matters is that consultation takes place at a stage where it can influence the outcome. It also held that while it is good practice to give at risk employees the opportunity to comment on the selection criteria prior to it being used, failing to do so would not inevitably mean the resulting redundancy dismissal was unfair as long as the employer remained open to persuasion that they may have got it wrong. In reaching that conclusion the Court pointed out that "formative" does not equate to early consultation in the temporal sense - what matters is the employer retaining an open mind.
The future
Although this case confirms that a general workforce consultation is not required when less than 20 employees are at risk of redundancy, we do know that in the future the trigger for collective consultation is going to be met more quickly and therefore more often. The Employment Rights Bill will amend the collective consultation framework so that it will be triggered when 20 or more redundancies are proposed anywhere in the employer's business within a period of 90 days, rather 20 or more redundancies at the one establishment. With the Employment Rights Bill also proposing an increase to the protective award for failing to collectively consult, employers will have to keep a close eye on any redundancy proposals made across multiple sites.
