Joseph De Bank Haycocks v ADP RPO UK Limited

Fair redundancy consultation is assessed under the broad reasonableness duty in section 98(4) of the Employment Rights Act 1996, applying established guidance case by case. Consultation must take place while proposals remain formative: the employer must retain an open mind and the employee must have a realistic opportunity to influence the outcome. In a smaller non-unionised redundancy exercise, there is no automatic requirement or rebuttable presumption of unfairness based on the absence of a group meeting. Individual consultation should nevertheless allow views on any issue affecting dismissal or its consequences, whether common or personal. A scoring exercise completed before consultation is bad practice, but does not itself make dismissal unfair if the employer could reconsider and a fair internal appeal conscientiously addresses the challenge.

ADP dismissed Haycocks for redundancy after a selection exercise. The Employment Tribunal dismissed his unfair-dismissal claim on 7 July 2021. The Employment Appeal Tribunal allowed his appeal on 28 November 2023, found the dismissal unfair, and remitted the case for remedy, holding that the process lacked consultation at a formative, workforce level. ADP appealed. The Court of Appeal had to decide whether that requirement was sound, whether the EAT decided a point outside the appeal, and whether the Employment Tribunal had materially erred in addressing consultation, including the timing and disclosure of selection scores.

The Court of Appeal unanimously allowed ADP’s appeal and restored the Employment Tribunal’s dismissal of the unfair-dismissal claim.

1. Applicable framework. Section 98(4) of the Employment Rights Act 1996 is the statutory keystone. The principles in Williams v Compair Maxam Ltd [1982] ICR 156 and related authorities guide the reasonableness assessment but do not create rigid rules. Fairness must be assessed case by case.
2. Consultation. Where collective consultation occurs, common issues may be addressed collectively and individual issues separately. In a smaller non-unionised redundancy exercise, however, there is no general requirement or rebuttable presumption that the employer must hold a workforce-level meeting. Individual consultation should ordinarily allow the employee to raise any issue affecting the risk or consequences of dismissal, whether common or personal. A failure to consult on a particular matter is not automatically fatal.
3. Formative stage. Consultation should occur while proposals remain formative. This means that the employer has not closed its mind and the employee can realistically influence the decision; it does not necessarily mean the earliest point in time. The principle stated in R v British Coal Corporation ex p Price [1994] IRLR 72 was applied in that sense.
4. Scoring and appeal. Completing the selection scoring before consultation was bad practice because employees should have had an opportunity to comment on the criteria and their application. It did not prove that the decision was irrevocably made. A fair internal appeal can cure a procedural defect where it conscientiously investigates the complaint. The Employment Tribunal found that the appeal had done so, including in relation to the scores, and that finding was not challenged before the Court.
5. Appellate scope. The EAT erred by deciding the appeal on a new requirement of workforce-level consultation, which was not the ground pursued before it. The Employment Tribunal had identified consultation as an issue, found the relevant facts, and addressed the central complaint. No material error of law was established.

• Court of Appeal (Civil Division). Appeal allowed and the Employment Tribunal’s decision restored.
• Employment Appeal Tribunal. In case EA-2021-000794-NLD, the appeal was allowed on 28 November 2023, a finding of unfair dismissal was made, and the case was remitted for remedy.
• Employment Tribunal. The unfair-dismissal claim was dismissed on 7 July 2021.