Redundancy – failure to consult

Circumstances may arise where change, for example, due to education initiatives, organisational requirements or budgetary position, make it necessary to review and seek changes to the staffing structure. This could either be across a school or in particular areas, leading to changes in roles, contractual terms and conditions, or proposed redundancies. Where redundancies are envisaged, employers need to consult with staff individually and with unions or elected staff representatives, sometimes collectively, with a view to trying to reduce or avoid redundancies and reach agreement on the proposals if possible.

Failure to consult

A failure to consult employees at the formative stage in a redundancy exercise can render a later dismissal unfair, as was found in the case of Joseph De Bank Haycocks v ADP RPO UK Ltd.

Selection criteria

Mr Haycocks was employed to recruit employees for a client company. Due to the pandemic the demand for new employees to be recruited to the client company diminished to an estimated 50% of that before the pandemic. A decision was taken to reduce the workforce. The employer used a standard matrix of criteria for selection and a 16-person team was scored 1 to 4 on each of the 17 entirely subjective criteria at the beginning of June 2020. Mr Haycocks came last in the rankings. At the time of scoring, the consultation process had not begun. An initial consultation meeting took place thereafter on 30 June 2020, followed by a consultation period of 14 days.

Consultation meeting

At the meeting on 30 June, Mr Haycocks was able to ask questions and could suggest alternative approaches to redundancy. He was invited to a further meeting on 8 July. A final meeting took place on 14 July, where he was handed a letter of dismissal. During the meetings, he was not provided with details of his scores, or the scores of the other 15 members of the team as comparison.

Appeal against dismissal

Mr Haycocks appealed against his dismissal on the basis he had been scored too low and that he had not been provided with the opportunity to challenge his scores. An appeal hearing took place on 10 August 2020, and while he did have his scores by the time of the appeal, he was not shown the comparative scores of his colleagues.

The employment tribunal (ET) accepted that he did not have his scores until after dismissal but concluded the appeal process was carried out conscientiously. Further, Mr Haycocks had failed to demonstrate that his score should have been higher. Mr Haycocks appealed, arguing that the employer had failed to consult properly and the ET had not considered the consultation issue adequately or at all.

Meaningful consultation

The employment appeal tribunal (EAT) found that the ET had overlooked aspects of the issue of consultation and held that there was a failure to consult at the formative stage. They held ‘the absence of meaningful consultation at a stage when employees have the potential to impact on the decision is indicative of an unfair process’. The EAT further found there was no good reason for this consultation not to take place. While the employer relied on the approach that the appeal would correct any missing aspect of the individual consultation process, the EAT held it could not repair the gap of consultation at the formative stage.

Advice for schools

It is important that schools follow good practice when it comes to redundancy consultation. A reasonable employer will seek to minimise the impact of a redundancy situation by limiting numbers, mitigating the effect on individuals, or avoiding dismissals, and by engaging in consultation. Employees must be given as much warning as possible of impending redundancies. Fair consultation occurs when proposals are at a formative stage and where adequate information and adequate time in which to respond is given, with conscientious consideration to the response. Consultation should include the reasons for any proposed redundancies, details of the selection criteria, the number and method of carrying out dismissals and consideration of alternative employment.

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