Joseph De Bank Haycocks v ADP RPO UK Limited

The appeal concerns whether the redundancy consultation carried out by ADP was fair. The Employment Tribunal found the dismissal for redundancy was fair. The Employment Appeal Tribunal allowed the claimant's appeal, holding that consultation at a "workforce" or group level at the formative stage was ordinarily required in non-unionised, smaller-scale redundancies and that omission rendered the dismissal unfair. The Court of Appeal rejected that new general requirement.

Key legal principles:

• Section 98(4) of the Employment Rights Act 1996 provides the statutory framework for determining fairness in dismissals for redundancy and requires tribunals to assess the reasonableness of the employer's approach.
• Established case-law (including Williams v Compair Maxam and R v British Coal ex p Price) requires consultation at a formative stage, but how that principle applies depends on the circumstances.
• There is no general rule that an employer must undertake a separate "general workforce" or group-level consultation in every smaller-scale, non-unionised redundancy exercise; adequacy of consultation is a fact- and context-specific inquiry.

The Court of Appeal held that the Employment Tribunal had not erred in law in concluding that, viewed as a whole (including a conscientious internal appeal), ADP's redundancy process fell within the band of reasonableness and the EAT’s introduction of a new general workforce consultation requirement was incorrect. The Court therefore restored the ET decision.

This is an appeal from a decision of the Employment Appeal Tribunal in a claim of unfair dismissal for redundancy. The claimant, employed by ADP RPO UK Limited as a recruiter working for Goldman Sachs, was dismissed for redundancy in July 2020 following a selection exercise using a scoring matrix. The claimant argued both that his role was not genuinely redundant (relying in part on past difficulties with a Goldman Sachs manager) and that the redundancy process was procedurally unfair, in particular because (i) the scoring had been completed before the consultation period began and (ii) he was not told his scores until after dismissal.

The Employment Tribunal (Employment Judge Goodman) heard the claim, found the substance was redundancy and dismissed the unfair dismissal claim, concluding that the selection criteria and their application did not show that the claimant had been unfairly marked down. The claimant appealed to the Employment Appeal Tribunal. The EAT allowed the appeal, reasoning that, given reductions in union representation and modern industrial relations practice, there was generally an expectation that employers would hold a "workforce-level" or group consultation at the formative stage of redundancies in non-unionised workplaces; the ET had not explained why that step was omitted and so the dismissal was unfair.

The Court of Appeal allowed ADP's appeal. The court rejected the EAT's attempt to impose a rebuttable presumption that group-level consultation is the usual standard for all smaller-scale, non-unionised redundancy exercises. The court restated that the statutory test remains one of reasonableness under section 98(4) of the Employment Rights Act 1996 and that the established authorities (including Williams v Compair Maxam and R v British Coal ex p Price) require consultation at a formative stage but do not prescribe a uniform group-meeting requirement. The court emphasised that the fairness of consultation is fact-sensitive. It also held that the tribunal's failure to address expressly the timing of the scoring did not amount to a material error of law because the scoring could have been re-opened in principle and, in any event, the internal appeal had conscientiously investigated and rejected the claimant's complaints, thereby curing any procedural defect.

Nature of the claim: claim for unfair dismissal (redundancy).

Issues framed by the courts: whether redundancy was a pretext; whether the employer followed fair procedure, including whether consultation was at a formative stage and whether the claimant was deprived of the opportunity to challenge scores; whether any procedural failings were cured by the internal appeal; and whether the EAT erred in imposing a general workforce consultation requirement.

Court's reasoning (concise): the Court of Appeal held that (i) the EAT’s new general workforce consultation requirement extended beyond established authority and would impose an unwarranted presumption in diverse factual contexts, (ii) formative-stage consultation means a stage at which the employee can realistically influence the outcome rather than a fixed temporal point, (iii) procedural defects may be cured by a proper internal appeal, and (iv) on the facts the Employment Tribunal was entitled to conclude the process was fair overall and the EAT had erred in law in its approach.

The appeal is allowed. The Court of Appeal held that the Employment Appeal Tribunal erred in formulating and applying a general requirement that employers in smaller-scale, non-unionised redundancy situations must undertake a separate "general workforce" or group-level consultation at the formative stage. The Court reaffirmed that the statutory test under section 98(4) of the Employment Rights Act 1996 and established authorities govern fairness, that "formative" consultation means a stage at which the employee can realistically influence outcomes, and that an internal appeal which conscientiously examines alleged defects can cure procedural shortcomings. Applying those principles, the Court found no material error of law in the Employment Tribunal's conclusion that ADP's process was within the band of reasonableness and restored the ET's decision dismissing the claim.

Appeal from the Employment Appeal Tribunal (sitting to review the Employment Tribunal's decision in EA-2021-000794-NLD). At first instance the Employment Tribunal (EJ Goodman) dismissed the claimant's unfair dismissal claim (hearing 5-6 July 2021; decision dated 7 July 2021). The claimant appealed to the EAT (permission on grounds J and L; further ground O later permitted at sift); the EAT allowed the appeal (judgment promulgated 28 November 2023), finding an absence of consultation at the formative stage. The Court of Appeal (Underhill LJ, Singh LJ, Baker LJ) allowed ADP's appeal and restored the ET decision ([2024] EWCA Civ 1291).