Background
In this case the employer needed to make a couple of redundancies following reduced demand as a result of the pandemic. These proposals did not trigger the statutory thresholds for collective consultation.
A manager scored the affected team and the employer then commenced individual consultation. Mr. De Bank Haycocks (DBH) had scored the lowest and he was ultimately dismissed by reason of redundancy. DBH did not receive his scores during consultation, but did receive them before his appeal against dismissal, which was rejected.
DBH unsuccessfully claimed unfair dismissal in the employment tribunal but won an appeal to the EAT. The EAT held that there should be "workforce consultation" at the formative stage of the redundancy process. It did not elaborate on what this phrase meant, saying instead that it could take different forms. The EAT further held that if an ET thinks that it was reasonable for an employer not to conduct workforce consultation in a particular case it should expressly explain why this is so in its reasons.
The Court of Appeal overturned the EAT, restoring the finding that DBH was fairly dismissed on the grounds of redundancy.
The court rejected the EAT's novel concept of workforce consultation. This had not been previously identified in case law or in any ACAS or other published guidance and was not, therefore, the usual standard for consultation in individual redundancy exercises. The court observed that it was not clear what the term was supposed to mean precisely, nor had the EAT given any guidance on this.
The court proceeded to confirm previous case law on the timing of individual consultation: this should be at the formative stage of the redundancy process, which means it should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome. The court further confirmed the longstanding principle that an internal appeal process can potentially cure an earlier procedural failing. The ET had expressly found that the employer's appeal process involved a conscientious investigation of DBH's complaints about the scoring process.
ADP RPO UK Ltd v De Bank Haycocks, Court of Appeal.
