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“Insensitive and perfunctory” redundancy consultations

Background

The Claimant was employed as a Director at BNP Paribas Real Estate (“the Company”) and had worked there for 41 years.

In 2014, the Claimant was identified as at risk of redundancy and the Company decided to place him in a pool of one. On the same day that the Claimant was told he was at risk of redundancy he was also immediately placed on garden leave and told not to contact clients or colleagues.

A letter was subsequently sent to the Claimant during the consultation process which addressed him by the wrong name.

The Claimant was told that there were no alternative roles and he was dismissed by reason of redundancy. The Claimant’s appeal against his dismissal was rejected.

The Claimant brought a claim to the Employment Tribunal for unfair dismissal and age discrimination.

The Law

After establishing a fair reason to dismiss, a tribunal must consider whether the dismissal was “within the band of reasonable responses”, this includes carrying out a fair consultation in the context of a redundancy situation.

Decision

The Employment Tribunal dismissed both claims. It found that there was a genuine redundancy situation and that the consultation fell within the “band of reasonable responses” despite the fact that the process had been insensitive (i.e. referring to the Claimant by the incorrect name) and perfunctory.

The Employment Appeal Tribunal (“EAT”) disagreed with this decision. While a ‘perfunctory’ consultation may not necessarily be unreasonable, thus rendering a dismissal unfair, the Employment Tribunal had failed to give reasons as to why it found the dismissal was fair particularly given its criticisms of the way the consultation was carried out. The case was remitted to be reheard by a different tribunal.

Comment

The obligation to consult arises when redundancy proposals are at the “formative stage” i.e. no decisions to dismiss have been made. Employers should remember that when starting a redundancy process, dismissal should not be a forgone conclusion and consultation should be meaningful. In this particular case, it was noted as surprising that the Claimant was placed on garden leave, typically indicative of an employee on notice of termination, if the consultation was genuinely taking place at the “formative stage”. Employers should treat this decision as a reminder of the importance of carrying out a fair consultation and not being seen to take steps that could be viewed as pre-emptive in order to minimise the risk of potential claims.

If you would like to speak to us about a redundancy process, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

 

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