Summary
The Employment Appeal Tribunal has ruled that individual redundancy exercises require some form of broader workforce consultation, especially at a stage where it could make a difference. This means that consultation with more employees than just the person selected for redundancy should be conducted. The EAT’s decision may not necessitate consulting widely in every individual redundancy process, but it emphasizes the importance of genuine and potentially impactful consultation.
- When an employer proposes redundancy dismissals, a fair process must be followed, which typically includes consultation with the affected employees. This consultation process should give the affected employee(s) a genuine opportunity to comment on the proposal, selection criteria, and other relevant aspects.
- Special statutory rules apply when an employer proposes 20 or more redundancies in a 90 day period (collective redundancies). In these cases, collective consultation is required with trade union representatives or elected employee representatives.
- In De Bank Haycocks v ADP RPO UK Ltd, the EAT ruled that “workforce consultation” is necessary when the statutory collective consultation rules are not triggered (individual redundancies).
- The EAT emphasized the need for consultation to occur at the early stages of the redundancy process, at a time where it could make a difference. The decision, while novel, may risk blurring the legislative distinction between collective and individual redundancies.
- The main point is that consultation must be genuine and have the potential to affect the outcome. While not all individual redundancy processes require consultation with a wide section of the workforce, it should be conducted when it could make a difference.
- Employers should ensure that, even in individual redundancy exercises, employees are given the opportunity to provide input on the necessity of redundancies and the rationale behind the proposal.
In De Bank Haycocks v ADP RPO UK Ltd, the company initiated individual consultation with a staff member who scored the lowest during a redundancy proposal, leading to the EAT’s ruling emphasizing the need for workforce consultation at the formative stage of the redundancy process.
The EAT’s decision does not mean that all individual redundancy processes require wider workforce consultation, but underscores the importance of genuine and potentially impactful consultation.
De Bank Haycocks v ADP RPO UK Ltd, EAT.