Is it fair to assess and score an employee before a consultation process?

The following case Haycocks v ADP RPO UK Ltd has recently made its way to the Supreme Court to assess the above question.

Mr Haycocks was employed by a recruitment process outsourcing business. As a result of the Covid-19 pandemic, the company decided to reduce headcount in the team where Mr Haycocks worked.

Redundancy selection

The employees were assessed in accordance with a ‘redundancy selection criteria matrix’ and Mr Haycocks received the lowest score. He was informed at a meeting in June 2020 that he was at risk of redundancy and advised that a consultation process would follow. At no point was Mr Haycocks told his scores during the consultation process, these were only provided on his appeal from dismissal.

Unfair dismissal

He proceeded to bring a claim within the employment tribunal (ET) for unfair dismissal. The ET determined the redundancy process had been fair. Further, no evidence had been provided to show that Mr Haycocks would have been marked any higher.

Absence of a proper consultation

Mr Haycocks appealed to the employment appeal tribunal (EAT) that found there had been an absence of a proper consultation at a ‘formative’ stage and Mr Haycocks had been unfairly dismissed. This is the stage where there is ‘the opportunity to have input from the workforce and an opportunity to propose other means by which the employer could minimise the impact of the redundancy situation’. The EAT held that ‘while the appeal could correct any missing aspect of the individual consultation process (eg the provision of Mr Haycocks’s own scores), it could not repair the gap of consultation in the formative stage which we have identified’.

The company appealed the decision to the Court of Appeal. The Court of Appeal found no error of law in the ET’s conclusion that, viewed overall, the company had conducted a fair redundancy process and Mr Haycocks’s dismissal was not unfair.

The Supreme Court has refused permission for Mr Haycocks to appeal.

Advice to schools

To ensure a fair consultation process, schools should be mindful of the following guiding principles set out by the EAT:

• The employer will normally warn and consult either the employees affected or their representatives.
• A fair consultation occurs when proposals are at a formative stage, and where adequate information and adequate time in which to respond is given, along with conscientious consideration being given to the response.
• Whether in collective or individual consultation, the purpose is to avoid dismissal or ameliorate the impact.
• A redundancy process must be viewed as a whole and an appeal may correct an earlier failing making the process as a whole reasonable.
• The ET’s consideration should be of the whole process, also considering the reason for dismissal, in deciding whether it is reasonable to dismiss.
• It is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect.
• Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.
• The use of a scoring system does not make a process fair automatically.
• The relevance or otherwise of individual scores will relate to the specific complaints raised in the case.

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