It is well-established that a fair redundancy consultation involves giving the employees at risk of redundancy a fair and proper opportunity to understand fully the matters on which they are being consulted, to express their views, with the employer giving genuine consideration to any views or viable suggestions put forward to potentially avoid a redundancy dismissal.
Caselaw confirms that consultation will only be meaningful, as part of a fair redundancy process, if it happens at the appropriate stage of the consultation, when it can still make a difference to the outcome, rather than after a redundancy decision has been made. This means that giving an employee the right of appeal against a redundancy dismissal will not always make an unfair process fair overall.
In a recent Employment Appeal Tribunal case, an employee was employed as a part of a team to recruit employees for a single client company. Following a scoring exercise, the employee was selected for redundancy as one of the lowest scorers. He was not told how he or his colleagues had been scored against the selection criteria and he was not given his own redundancy scoring results until his dismissal. The employee claimed unfair dismissal on the basis that the employer had failed to consult properly by not making him aware of his redundancy scores before he was dismissed.
The tribunal found that the procedure was fair overall and dismissed the claim. On appeal, the Employment Appeal tribunal disagreed with the tribunal’s conclusion. It held that there had been a clear absence of meaningful consultation at the formative stage of the redundancy process. Whilst the appeal could correct any missing aspect of the individual consultation process (in this case, the failure to provide the employee with their scores against the selection criteria), it could not repair the failure to properly consult in the formative stage which could have avoided the claimant being selected for redundancy. For this reason, the Employment Appeal Tribunal found that the employee had been unfairly dismissed.
This case confirms that if an employer applies selection criteria and carries out scoring before communicating with the employees in the redundancy pool about proposed redundancies, it is likely to be difficult to show, in the event of an unfair dismissal claim, that consultation began when the proposals were still at a stage where the outcome was not inevitable.
In a case where consultation is not carried out at the stage when it can still affect the outcome of the consultation, the redundancy consultation should be recommenced. This is because a fundamental flaw in the consultation process cannot generally be corrected on appeal.