Haycocks v ADP RPO UK Ltd – Court of Appeal [2024] EWCA Civ 1291
The above recent Court of Appeal decision has highlighted how the courts and tribunals consider the adequacy of consultation in non-union workplace consultations for redundancy.
Mr Haycocks was a recruitment consultant. He was part of a London-based team of 16 staff employed to recruit for one client, Goldman Sachs.
Due to the impact of Covid-19, the employer (ADP) decided it would have to make redundancies in May 2020. The employer assessed relevant employees by way of a redundancy selection criteria matrix.
Mr Haycocks received the lowest overall score by reference to the matrix. On 18 June 2020, after the scoring exercise had been undertaken, a decision was made by the employer that the recruitment team should be reduced by two people. A consultation timetable was set under which all staff in the pool for redundancy would be informed (individually) on 30 June that they were at risk of redundancy. This would be followed by a 14-day consultation period, at the end of which decisions on redundancy would be communicated to staff.
In accordance with the timetable, Mr Haycocks was called to a meeting on 30 June, at which he was informed about the consultation process. Mr Haycocks was given a letter which stated that a selection matrix scoring process would be used to determine who was selected for redundancy. Mr Haycocks was also given an example of the matrix. He was not given the matrix score at that time.
At a third meeting, Mr Haycocks was dismissed for redundancy. Mr Haycocks was not told how he, or his colleagues, had been scored against the selection criteria (or matrix) at the time of his dismissal for redundancy. Mr Haycocks appealed and during this, he received the matrix scores but was not successful in his appeal.
Mr Haycocks then pursued an Employment Tribunal claim for unfair dismissal which he lost. He argued that his dismissal was caused or influenced by a falling-out between him and the client, and he complained that ADP Ltd had failed to give him the opportunity to challenge and express his views on the redundancy scores. He appealed to the Employment Appeal Tribunal which overturned the Employment Tribunal decision. The employer then took the case to the Court of Appeal, which reinstated the Employment Tribunal decision and decided in favour of the employer deciding that there had been a fair redundancy process.
The Court of Appeal observed that where there is a recognised trade union, or representatives appointed (or elected as prescribed by statute), there will be someone who can be treated as expressing the views of the affected workforce and with whom those views can be discussed.
That purpose is not replicated, even approximately, by holding a general workforce meeting: no one at such a meeting has a mandate to represent the individual employees, who will simply express their own views. The Court of Appeal saw no justification for departing from the well-established principle that, since redundancy situations arise in a wide variety of circumstances, the adequacy of consultation must be considered on a case-by-case basis. In non-unionised workplaces, group meetings may indeed be a useful way of ascertaining the views of employees concerning smaller-scale redundancies, but the appropriateness of such meetings will depend on the circumstances.
The Court of Appeal criticised the Employment Appeal Tribunal’s decision that no consultation had taken place at the formative stage of the process and this conclusion was based squarely on the absence of general workforce consultation. In the Court’s view, what matters is that the employer still has an open mind, and that the employee can realistically still influence the decision, not how soon after the proposal was first formulated the consultation occurs. The Employment Appeal Tribunal had not conducted any analysis of the actual sequence of events, or the criticisms advanced by Mr Haycocks. The central part of Mr Haycock’s case, that consultation had not occurred at the early stage of the process, was based on his contention that the employer had effectively made the decision to dismiss him at the point at which it conducted the scoring exercise or used the matrix. It had nothing to do with the need for consultation ‘at the workforce level’, which was a new argument put forward by the EAT itself.
The Court of Appeal agreed that it was bad practice for the employer to carry out a scoring exercise before the consultation started. However, the failure to give Mr Haycocks the opportunity to comment on the selection criteria, before it was used, did not mean that his dismissal was inevitable when it transpired that Mr Haycock’s score was lowest. During the consultation stage, if he, or anyone else, had persuaded the employer that their criteria was flawed, it was not too late for the exercise to be re-done. The scoring decision would only constitute an effective decision to dismiss if the employer would not, in practice, have been prepared to reconsider matters.
The Employment Tribunal decision had expressly found that the employer conscientiously addressed Mr Haycock’s complaints about the scoring process when it had disclosed the matrix score at the appeal stage. There was no error of law in the Tribunal’s conclusion that the employer had conducted a fair redundancy process.
The case shows the benefit of having collective, or general workplace consultation, where selection criteria is likely to be outlined at an early stage in the redundancy consultation process and agreed with recognised trade unions. In non-union situations, whether there has been adequate consultation for redundancy will depend on the facts and dealt with on a case-by-case basis.
Author: Damian Kelly, employment
