ADP RPO UK Limited v Haycocks: Court of Appeal Overturns EAT
The Court of Appeal has today handed down judgment in ADP RPO UK Limited v Haycocks, overturning the EAT’s decision and restoring the decision of the Employment Tribunal.
Notably, the Court rejected the EAT’s suggestion that there needed to be “general workforce consultation” in small-scale redundancies (where less than 20 redundancies are proposed) in order for a dismissal to be fair.
The decision also pulls together the strands of much of the case law on redundancy consultation, and serves as a useful reminder of the fact that the fairness of a particular redundancy dismissal will always depend on the facts of the case. The case will prove a useful reference point for all employment lawyers and organisations making redundancies.
The Facts
The Claimant, Mr Haycocks, was employed by ADP as a “sourcer” in London. In May 2020, as a result of Covid-19, ADP decided that it would need to make redundancies in the team in which the Claimant worked. He was in a pool of 16. He scored lowest in that pool. The scoring took place before consultation commenced.
A typical small-scale redundancy process then followed, with ADP holding individual consultation meetings with all 16 members of the pool. The final consultation meeting took place on 14 July 2020, at which the Claimant was informed of his selection for redundancy and was dismissed. The day after, it was realised that the Claimant had not been sent his scores during the process and he was promptly sent them.
The Claimant appealed the decision to make him redundant and an appeal process (which the Tribunal found to have been conscientiously undertaken) took place. The Claimant’s dismissal was upheld.
The Employment Tribunal dismissed the Claimant’s claim of unfair dismissal, holding that the redundancy process was fair overall.
The Claimant appealed to the EAT.
The EAT Decision
The EAT considered a number of authorities and then summarised the law at paras.21-22 as follows:
“21. What emerges from the above authorities is that the statute is always the keystone to ET decision making. That being the keystone, the guidance provided by various authorities in respect of specific circumstances is just that, guidance; it does not create a stricture on ET decision making. If, despite the guidance, the process adopted by the employer falls within the band of reasonableness an ET must find so. However, the purpose of guidance from the appeal courts is to inform the question of reasonableness and if the guidance does not apply, ETs would be expected to explain why it did not in the particular case.
- The authorities set out the following guiding principles:
- The employer will normally warn and consult either the employees affected or their representative; Polkey v A.E. Dayton Services Ltd [1988] AC 344.
- A fair consultation occurs when proposals are at a formative stage and where adequate information and adequate time in which to respond is given along with conscientious consideration being given to the response; R v British Coal Corporation ex p Price [1994] IRLR 72.
- Whether in collective or individual consultation, the purpose is to avoid dismissal or ameliorate the impact; Freud v Bentalls Ltd [1983 ICR 77.
- A redundancy process must be viewed as a whole and an appeal may correct an earlier failing making the process as a whole reasonable; Lloyd v Taylor Woodrow Construction [1999] IRLR 782.
- The ET’s consideration should be of the whole process, also considering the reason for dismissal, in deciding whether it is reasonable to dismiss; Taylor v OCS Group Ltd [2006] ICR 1602.
- It is a question of fact and degree as to whether consultation is adequate and it is not automatically unfair that there is a lack of consultation in a particular respect; Mugford v Midland Bank plc [1997] ICR 399.
- Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process; Camelot Group plc v Hogg UKEATS/0019/10.
- The use of a scoring system does not make a process fair automatically; British Aerospace plc v Green [1995] ICR 1006.
- The relevance or otherwise of individual scores will relate to the specific complaints raised in the case; British Aerospace v Green.”
The EAT went on to state (at paras.28-29) that:
“28. …the purpose of collective consultation is actually a reflection of good industrial relations in either type of workplace [unionised and non-unionised] and that such consultation should generally occur at the formative stages of a process. That might better be described as general workforce consultation rather than “collective”, which is a word that has connotations of union representation… What is important about that stage of consultation is that the British Coal principles are fulfilled; the opportunity to have input from the workforce. That is an opportunity to propose other means by which the employer could minimise the impact of a redundancy situation.
29.The individual stage of consultation is, as we indicate, more personally directed. This stage would, generally, consider such things as alternative employment. However, again, it is not for us to be prescriptive but such consultation would usually be expected to occur in addition to the collective stage.”
The EAT held (at para.32) that there was an absence of general workforce consultation at the formative stage in this case, meaning “there was never any opportunity to discuss the prospects of a different approach to any aspect of the redundancy process chosen by the employer”, which, it said, was “indicative of an unfair process”. It also said: “Without an explanation as to why omitting the workforce level of consultation would be reasonable in these particular circumstances, the ET has not provided sufficient reasons to explain its decision.” The EAT substituted a finding of unfair dismissal.
ADP appealed to the Court of Appeal.
The Court of Appeal Decision
The Court of Appeal accepted the summary of the law at paras.21-22 of the EAT Judgment, save that it said the final sentence of para.21 (relating to a requirement for Tribunals to explain any departure from appellate guidance) “should not be treated as stating a rule of law” (see para.41).
Turning to consider a case where the statutory collective consultation provisions do not apply, the Court went on to state (at paras.52-53) that:
“52. … In such a case it is good practice for employees to be given, in the course of individual consultation, the opportunity to express their views on any issue that may affect the risk of their dismissal or its consequences, whether it is peculiar to them as an individual or common to the affected workforce as a whole. It should certainly not be assumed that they will have nothing useful to contribute on common issues: it depends on the particular case. For the avoidance of doubt, I am not to be taken as saying that a failure to afford that opportunity will necessarily render any subsequent dismissal unfair: again, that will depend on the circumstances… But if there is a widespread view among employers that individual consultation need only ever address individual matters the sooner they are disabused of it the better.
- So far so good, but I fear that I cannot agree with the EAT that, in order to ensure that the opportunity for consultation on common issues is given in the case of smaller-scale redundancies in non-unionised workplaces, it should be treated as a requirement of good industrial relations practice – or “the usual standard” – that the employer should in such cases conduct what it calls “general workforce consultation”, so that there is in effect a rebuttable presumption that a dismissal where there has been no such consultation will be unfair…”.
Underhill LJ then sets out his reasons for this view, including that such matters could be dealt with as part of individual consultation, that “Group meetings may… be a useful way of ascertaining the views of employees, but their appropriateness will depend on the circumstances”, and that the adequacy of consultation has to be considered on a case-by-case basis (see paras.54-58).
Underhill LJ goes on to consider what is meant by consultation occurring at a time when proposals were at the “formative stage” (taken from the often-cited case of R v. British Coal Corporation ex p Price[1994] IRLR 72). He endorsed the submissions that this meant “at a stage where it can make a difference to outcomes” (as opposed to “early consultation” in the temporal sense) or “at a point at which the employee can realistically still influence the decision” (see para.60). He observes that the later in the process consultation began, the greater the risk that the decision-maker will have closed their mind, but, again, everything would depend on the facts of the case.
The Court of Appeal, in assessing the way the Claimant put his case, found that there was no error of law in the Tribunal’s decision. It upheld the appeal and restored the Tribunal’s finding that the dismissal was fair.
Practical Tips
The following practical tips can be taken away from the Court of Appeal decision in this case:
- Williams v Compair Maxam Ltd [1982] ICR 156 remains the seminal case on redundancies;
- General workforce consultation is not mandatory but may be useful depending on the facts of the case (para.55);
- Consultation ought to cover issues “common” to the workforce (e.g. ways of avoiding/reducing redundancies and/or ameliorating their affect) as well as issues peculiar to the individual (e.g. their own scores and suitable alternative employment);
- Consultation ought to take place at a formative stage whilst a decision-maker remains open-minded and comments/suggestions made by employees may influence the outcome – the later the consultation takes place, the greater the risk the decision-maker will have closed their mind and the consultation considered meaningless (para.60);
- Scoring ought to take place after the consultation process has commenced and employees have been given an opportunity to comment on the selection criteria (para.73);
- Employees ought to be given their own scores during the consultation process and given an opportunity to comment on them (paras.15 and 77);
- A procedural unfairness in a decision to dismiss can be cured by a fair internal appeal (para.75) – but it would be better not to have to rely on that if possible!
The full judgment of the Court of Appeal can be found here.
Charlene Ashiru and Kieran Wilson acted for the successful Appellant, ADP RPO UK Ltd, instructed by Bingham Mansfield.
