The recent Employment Appeal Tribunal case of De Bank Haycocks v ADP RPO UK Ltd highlights the importance of employers engaging in meaningful consultation with employees placed at risk of redundancy. 

This case concerned a recruitment consultant employee (DBH) who was placed in a pool with his 15 recruitment consultant colleagues for redundancy following a downturn in work caused by the COVD 19 global pandemic. Alongside his colleagues, in early June, DBH scored by his manager against subjective redundancy selection criteria. DBH scored the lowest.  

After the redundancy scoring exercise, on 18 June, DBH’s employer, ADP Ltd, decided that there would be 2 recruitment consultants made redundant. DBH was invited to a meeting on 30 June, where he was told of the redundancy situation, invited to ask any questions he may have and make suggestions as to alternative approaches to the redundancy situation. DBH was then invited to attend a second meeting on 8 July and a final meeting thereafter on 14 July. At the meeting on 14 July, he was advised of his dismissal by reason of redundancy. 

DBH appealed the decision to dismiss him. In the course of the appeal process, DBH was provided with his redundancy scoring, and the scoring of his 15 colleagues, but had not been provided with this information at the time of his redundancy consultation meetings in June and July.  

ADP Ltd dismissed his appeal, and DBH brought a claim in the Employment Tribunal for unfair dismissal. 

The Employment Tribunal originally found that DBH had not been dismissed unfairly and therefore rejected his claim. However, when DBH appealed this decision in the Employment Appeal Tribunal, the Employment Appeal Tribunal found that DBH’s dismissal was unfair. In reaching this decision, the Employment Appeal Tribunal found that consultation with DBH ought to have taken place at the formative stage of any decision on redundancy selection processes i.e. in early June, and that ADP Ltd could not provide any good reason for consultation not to take place at that stage of the redundancy process. The Employment Tribunal concluded that this meant that the employees affected, including DBH, were denied the opportunity to suggest ways in which redundancies could be avoided, and that there was never any opportunity to discuss the prospects of a different approach to any aspect of the redundancy process chosen by ADP Ltd. 

This case therefore serves as a stark reminder to all employers that carrying out a fair process when making redundancies is of significant importance, and in particular, employers must ensure that they engage in meaningful consultation with affected employees whist keeping an open mind as to representation made by employees during consultation. This case also demonstrates that the timing of consulting with employees is key, particularly given that the Employment Appeal Tribunal found in this case that a major part of the redundancy process in identifying redundancy selection criteria and carrying out the scoring exercise had all been completed before DBH was first consulted as to his role being placed at risk of redundancy.