The Employment Appeal Tribunal (EAT) has held in De Bank Haycocks v ADP RPO UK Ltd that an employee's dismissal for redundancy was unfair due to a clear absence of meaningful consultation at the formative stage of the redundancy process.
Mr De Bank Haycocks (DBH) was employed by ADP RPO UK Ltd (ADP) to recruit employees for a single client company. In March 2020, due to the pandemic, demand for new employees at that client reduced by approximately 50%. At the end of May 2020, ADP decided to reduce the recruitment workforce.
DBH knew nothing about his redundancy scores until he was dismissed for redundancy. The scoring exercise was undertaken by reference to subjective criteria provided by ADP's US parent company. DBH came last in the rankings and, after the scoring process was undertaken, it was decided that the team should be reduced by two. An initial consultation meeting was held followed by a 14-day period of consultation and then a final meeting when DBH was dismissed. DBH appealed against the decision to make him redundant and, by the time of the appeal hearing, he had his scores. His appeal was unsuccessful and he brought a claim for unfair dismissal.
The EAT found that DBH had been unfairly dismissed. It held that a key element of good industrial relations practice is consultation. There had been a clear absence of meaningful consultation at the formative stage of the redundancy process and there was no good reason for this. It held that an absence of consultation at a stage when employees could discuss the possibility of avoiding redundancies by proposing a different approach was indicative of an unfair process. The EAT also held that, while an appeal against a redundancy process could correct any missing aspect of the individual consultation process (for instance, as in this case, the provision of the claimant's scores), it could not repair the failure to consult at the formative stage.
Take note: The decision in De Banks Haycocks makes it clear that early consultation is going to be key to a redundancy process unless there is a good reason for it not to take place. A tribunal can still consider an employer's decision to make someone redundant where there is an absence of consultation to be reasonable (for example, where consultation would be futile), but this will not generally be the case.
