Consultation obligations for small-scale redundancies  

The Court of Appeal has considered whether a non-unionised employer should conduct general workforce consultation in relation to small-scale redundancies involving fewer than 20 employees. 

De Bank Haycocks v ADP RPO UK Ltd [2024] EWCA Civ 1291 

Facts of the case 

The employer (ADP) decided in May 2020 that as a result of the Covid 19 pandemic and a significant downturn in business, it needed to reduce its workforce of recruiters. Mr DBH was one of 16 people employed to recruit employees for a single client. At the beginning of June, his manager was asked to assess and score the team members by reference to a redundancy selection matrix. Mr DBH received the lowest score. ADP subsequently decided to reduce the team by two. 

Staff in the pool of 16, including Mr DBH, were informed that they were at risk of redundancy on 30 June 2020. Mr DBH was dismissed at a final consultation meeting on 14 July 2020. He was not provided with his scores against the selection criteria until he appealed against his dismissal. His appeal was rejected by ADP. 

Mr DBH’s claim for unfair dismissal was rejected by an employment tribunal, but it was later upheld by the Employment Appeal Tribunal (EAT). The EAT decided that there had been a lack of meaningful consultation at a formative stage of the process. It found there to be no good reason for the employer not to hold any “general workforce consultation” about the redundancy proposal. See out previous summary of the EAT’s decision.  

ADP appealed to the Court of Appeal. 

Court of Appeal decision 

The Court has upheld ADP’s appeal, restoring the employment tribunal’s original decision that Mr DBH’s dismissal was fair.  

The Court disagreed with the EAT’s conclusion that for smaller-scale redundancies (affecting fewer than 20 employees) in non-unionised workforces, it was a requirement for employers to conduct general workforce consultation.  

Consultation is required at a formative stage of the process, meaning that it must take place when the employer still has an open mind and the employee can realistically influence the outcome. However, the fact that there had been no ‘workforce level’ consultation in this case did not mean that consultation had not taken place at a ‘formative stage’.  

Whilst ADP had departed from good practice and had failed to consult with Mr DBH about the selection criteria and his scores during the consultation process, he was given the opportunity to comprehensively challenge this at the appeal stage. Therefore, when taken as a whole, including the appeal, the tribunal had been entitled to find that the dismissal was fair. 

The Birketts view 

This decision is a helpful one for employers, since it confirms that there is no general requirement to conduct collective, workforce consultation in redundancies affecting fewer than 20 employees.  

The Court made it clear that it was bad practice for the employer to have failed to consult with the employee about his scores, and to have conducted the scoring exercise before the consultation process started. It was satisfied that in this case the employer had done enough to remedy the defects in the procedure by conducting a comprehensive appeal process. Employers should not assume, however, that an appeal will necessarily result in a dismissal being found to be fair if the consultation has been manifestly unfair. The Court reiterated that the adequacy of consultation will be considered on a case-by-case basis.