The Court of Appeal has confirmed that there is no requirement for non-unionised employers to conduct “general workforce consultation” about redundancy situations affecting less than 20 employees.
Mr De Bank Haycocks was one of 16 people employed by ADP RPO UK Ltd. He was made redundant in 2020 and brought a claim for unfair dismissal. He argued that, as he had not been provided with his scores against the redundancy selection criteria during the consultation process, the redundancy was unfair. During the employment tribunal hearing, it also emerged that ADP had conducted the scoring exercise before the consultation process had started. Nevertheless, the employment tribunal found that the dismissal was fair because Mr De Bank Haycocks had been given the opportunity to challenge his scores when he appealed against his dismissal and could not demonstrate that they should have been higher.
Mr De Bank Haycocks appealed to the EAT. The EAT upheld his appeal, finding that the redundancy was unfair because there had been a lack of meaningful consultation at a formative stage. Specifically, the EAT found that ADP’s failure to conduct “general workplace consultation” was a breach of the requirements of good industrial relations practice that could not be cured by the redundancy appeal process.
ADP appealed to the Court of Appeal. The court upheld the appeal. It found that the EAT had been wrong to suggest that there was any requirement for workforce level consultation about small-scale redundancies. This was not supported by case law or any existing published guidance and was unworkable. The point had not even been argued by Mr De Bank Haycocks; it was a new argument put forward by the EAT itself.
The tribunal’s judgment did not specifically address the argument that the decision to make Mr de Bank Haycocks redundant had effectively been made when the scoring exercise was carried out, before the consultation process started. However, the tribunal had looked at the redundancy procedure as a whole, including the appeal. ADP had clearly departed from good practice in relation to both the failure to consult with Mr De Bank Haycocks over his scores and the timing of the scoring exercise. However, it had been saved only by its conscientious investigation into the scores during the appeal process. Consequently, there was no error of law in the tribunal’s conclusion that, overall, the redundancy process was fair.
(De Bank Haycocks v ADP RPO UK Ltd [2024] EWCA Civ 1291 (29 October 2024).)
Source: Practical Law