Employment Appeal Tribunal emphasises importance of consulting about proposed pool for selection in redundancy cases
Employers who need to make only a small number of redundancies must make sure that their consultation process doesn’t end up being a ‘tick box’ exercise.
The direction of travel from several recent EAT cases indicates that employers are expected to consult, at an early stage, about all aspects of a proposed redundancy – including selection criteria and pooling.
In Joseph de Bank Haycocks v ADP RPO UK Limited, the EAT held that a redundancy dismissal was unfair because of the lack of consultation at an early stage. In this case, much of what was missing from the consultation process (including selection criteria and scoring) was produced at appeal. However, the EAT held that the dismissal was unfair, noting that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.
This focus on the start of the redundancy consultation process as being key to the overall fairness of the result was continued recently in the case of Valimulla v Al-Khair Foundation. In this case, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one. The other liaison officers were not placed at risk. Three consultation meetings were held. There was no consultation about the appropriateness of the pool. The Claimant was dismissed and claimed unfair dismissal.
The employment tribunal held that the Claimant had been fairly dismissed for redundancy. The Claimant appealed.
The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case.
The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. It remitted the question whether it was reasonable for the Respondent to have applied a pool of one to a different tribunal.
This case is a reminder that employers should be seen to be involving employees and seeking their views on all aspects of any redundancy process – at a time in the process where this is able to make a difference.