Consultation and small-scale redundancies

In welcome news to employers, the Court of Appeal has confirmed there is no requirement to conduct general workforce consultation when considering redundancies affecting fewer than 20 employees.

Background

The claimant was one of 16 people employed by the respondent to recruit staff for a client company. In March 2020, the client company’s demand was reduced by approximately 50%, and the respondent decided to reduce the workforce at the end of May 2000.

The respondent’s department asked the claimant’s manager to assess and score her team members against a redundancy selection matrix. The claimant received the lowest score.

He was called to a meeting and told that the purpose of the meeting was to inform him of the situation and the need for redundancies, that he could ask questions, and that he could suggest alternative approaches to the reduction in demand. A second consultation meeting followed, and the claimant was dismissed at a final meeting on 14 July 2020.

The claimant appealed against his dismissal. By the time of the appeal hearing on 10 August 2020, he had received his scores against the selection criteria but not those of his colleagues. He argued that his scores were too low, challenged the redundancy selection criteria and complained about the lack of consultation over his scores.

His appeal was rejected, and he brought a claim for unfair dismissal.

Employment Tribunal

The claimant contended that, although there was a genuine redundancy situation, his selection for redundancy was unfair.

The Employment Tribunal (ET) dismissed his claim. Although it was accepted that he knew nothing about his scores until his appeal, the respondent had conducted sufficient investigation into the concerns he had raised during the appeal.

The claimant appealed, arguing that the decision to make him redundant had already been made when he was consulted.

Employment Appeal Tribunal

The EAT upheld his appeal, finding the dismissal unfair because the respondent had not had a meaningful consultation early in the process. The tribunal had not identified a good reason for no ‘general workforce consultation’ about the redundancy proposal, stating that workforce-level consultation required good industrial relations practice in all redundancy situations.

Court of Appeal

The respondent appealed to the Court of Appeal, which restored the ET’s decision, holding that there is no requirement for general workforce consultation in small-scale redundancies.

Comment

As an employer, you should be mindful that it is good practice to allow employees to comment on matters affecting them, such as the outcome of any redundancy scoring exercise, at the earliest opportunity.

The instant claim could have succeeded had the respondent not conducted a comprehensive redundancy appeal process. Relying on an appeal process to rectify errors is a risky strategy.

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