Joseph De Bank Haycocks v ADP RPO UK Ltd

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must decide whether dismissal for redundancy was reasonable in all the circumstances. Appellate guidance does not impose inflexible rules, but a tribunal departing from established good industrial-relations practice should explain why the process remained reasonable.

Ordinarily, redundancy consultation should begin while proposals are formative. Employees or their representatives should receive adequate information and time to respond, and their response should receive genuine consideration. This normally includes a workforce-level opportunity to discuss ways to avoid or mitigate redundancies, followed by individual consultation. An appeal may cure an earlier procedural defect only if it can genuinely fill the gap. It could not cure the absence of formative-stage consultation in this case.

The claimant was employed in a team recruiting for a single client. Reduced demand during the coronavirus pandemic led the respondent to reduce the team. Before employees were told of the proposed redundancies, the respondent had obtained and used subjective selection scores and had set a redundancy timetable.

The claimant attended consultation meetings, was dismissed for redundancy, and appealed. He challenged the process, including the timing and adequacy of consultation and the absence of comparative scoring information. The Employment Tribunal dismissed his unfair-dismissal claim. The claimant appealed on the sole pursued ground that the consultation had not been properly considered or was not a fair consultation exercise.

The central issue was whether the absence of meaningful consultation while the redundancy proposals and selection process remained formative made the dismissal unfair.

1. Appeal allowed. The Employment Tribunal had failed adequately to address the absence of consultation at the formative stage of the redundancy process. Its conclusion that dismissal was fair could not stand.

2. Section 98(4) of the Employment Rights Act 1996 remains the governing test. The guidance in authorities such as Polkey, British Coal and Mogane does not create a rigid precondition to fairness. However, it identifies normal good industrial-relations practice. If a tribunal concludes that a dismissal was nevertheless reasonable despite departure from that guidance, it should explain why.

3. Fair redundancy consultation ordinarily requires consultation while proposals are still formative, adequate information and time for a response, and genuine consideration of that response. The purpose is to seek ways to avoid dismissal or mitigate its effects. This ordinarily requires a workforce-level consultation stage, whether or not the workforce has union representation, as well as consultation directed to the individual employee.

4. Here, the respondent had selected and scored employees before consultation began. There was no opportunity for the workforce to influence the proposed approach, selection process, or alternatives to redundancy. No reason justified omitting that stage, and the absence of time pressure reinforced that conclusion. The omission was therefore indicative of an unfair process.

5. An appeal can in principle make the overall procedure fair by correcting an earlier defect. It could potentially cure a defect in individual consultation, such as failure to provide the claimant’s own scores. It could not retrospectively supply the missing formative-stage consultation in this case. The dismissal was unfair.

6. The case was remitted to the same Employment Tribunal for determination of remedy.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the Employment Tribunal’s dismissal of his unfair-dismissal claim and remitted the case to the same tribunal for remedy.
• Employment Tribunal: Employment Judge Goodman dismissed the claimant’s unfair-dismissal claim following a two-day hearing in July 2021. No citation was stated.