Redundancy Consultation Process And Unfair Dismissal

Redundancy Consultation Process And Unfair Dismissal

The Appeal Tribunal has set out a judgment that can be said to give the London Employment Tribunal a lesson in judging the fairness of a redundancy consultation.  In this respect, it is essential reading for employers wishing to avoid unfair dismissal when consulting during a redundancy.

The case of Thomas v BNP Paribas Real Estate concerns Mr Thomas, a long serving senior member of staff made redundant after 40 years.  He was identified as being within a pool of one for the purposes of selection, and at the end of consultation was made redundant. The gist of the matter is that the tribunal found there to have been a redundancy, and that is rarely interfered with by a tribunal. However, Mr Thomas was put on garden leave the moment he was put at risk, and then the Tribunal concluded that the consultation was “perfunctory and insensitive”.

In short, the employee was met with twice to consult, once to put him at risk, and once to hear his thoughts, and following this the decision was made and he was made redundant.

The judgment is a master class in what a tribunal will look at when determining whether a consultation, or lack of it, turns a redundancy into an unfair dismissal.

The judgment revisits the main cases and reminds us that the following are important points:

• The pool of selection
• How selection occurs (if apt)
• Proposals being given before the final decision is made (at the formative stage)
• Adequate time to respond
• Conscientious consideration of employee representations

The Appeal Tribunal actually upheld the appeal and remitted the case to a different tribunal to try again. The main reason was that the tribunal had described the consultation as perfunctory and insensitive but then gone on to say that it was “reasonable” and the Appeal Tribunal could not live with that.

In addition, and in passing, one of the judges who perused the case on appeal was particularly troubled by the immediate garden leave foisted upon an employee with 40 years’ service. The judge felt that this did not support the case that the consultation was undertaken at the “formative stage”.

This is a good read for employers who need to consider redundancies and a warning about simply jumping through hoops monkey fashion.

The full judgment can be read at the following link: http://www.bailii.org/uk/cases/UKEAT/2016/0134_16_0310.html

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