Meaningful consultation and conscientious consideration
If, as an employer, you find yourself having to consider redundancies, it is imperative that you consult your workers. The requirements are less prescriptive if fewer than 20 employees are at risk.
The Employment Appeal Tribunal (EAT) in London revisited the requirement for ‘general workforce consultation’ in one such case.
The claimant was employed as a member of a 16-strong recruitment team. In March 2020, there was a significant reduction in demand related to the COVID-19 pandemic. His employer decided to reduce their recruitment workforce accordingly. They set out a timetable with an initial consultation meeting, followed by a 14-day consultation period.
The position was explained to the claimant at the first meeting, and he was invited to a further meeting a week later. At a final meeting a week after that again, he was handed a letter of dismissal.
The employer did not consult on the redundancy proposals before pooling and scoring took place. The claimant was not aware of how he or his colleagues had scored. Before an appeal hearing, he was provided with his score but not those of his colleagues.
His appeal was unsuccessful. The claimant brought a claim for unfair dismissal.
The Employment Tribunal accepted that, although the claimant did not know his scores until after he was dismissed, the appeal process had been carried out conscientiously. The claim was dismissed. The claimant appealed to the EAT.
The EAT noted a theme in cases like this of employers acting within the band of reasonableness in redundancy situations when they follow good practice. A vital element of that is consultation.
It was held that there was a clear absence of meaningful consultation at the formative stage of the redundancy process, and there was no good reason for this. The lack of consultation at a stage where employees can discuss alternatives when they have the potential to influence is indicative of an unfair process. Although an appeal mechanism can be used to fill gaps in the earlier stages of the individual processes, it could not repair the gap of consultation in the formative stage for the claimant.
The EAT substituted a finding of unfair dismissal and remitted the case to the Employment Tribunal to deal with compensation.
Redundancy consultation must be meaningful, irrespective of the numbers involved. You should ensure that affected employees are involved in discussions when the outcome can still be influenced. This would be before pooling and scoring takes place.
To be ‘meaningful’, staff must be provided with adequate information on the proposals with sufficient time to respond. You must be able to show that you have given conscientious consideration to any alternatives that your affected employees propose.
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