Employers must consult employees before selection for redundancy

The Employment Appeal Tribunal (EAT) has underlined that consultation prior to selection of an employee for redundancy is a fundamental requirement to achieve a fair redundancy dismissal. The EAT decided that an employer who, without prior consultation with the affected employee, chose a redundancy selection criterion knowing the clear outcome would be that only that one employee was in scope for selection, did not undertake a fair selection process and unfairly dismissed that employee. 

Crucially, a fair redundancy procedure requires that consultation takes place at a stage when the employee can still potentially influence the outcome. The EAT’s view was that, where a selection criterion to be used would immediately identify the employee to be made redundant, then employee consultation should take place prior to the employer deciding which selection criterion to use.

This is a reminder to employers considering workforce restructuring of the need for early and meaningful employee consultation before decisions are made, including what the selection criteria will be.

Fair redundancy dismissals have a number of key stages which should be worked through in order. It is possible to rectify missteps throughout the process, but ideally, employers should keep to the following to mitigate the risk of claims:

• Establish a redundancy situation: is work or the workplace reducing or disappearing or about to reduce or disappear? 
• Establish whether the role is stand alone or whether a pool of employees for redundancy is needed from which a fair selection must be made.
• Identify selection criteria and undertake meaningful, pre decision and not prejudged consultation discussions with the affected employees.
• Consider with an open mind the employees’ responses during consultation before a decision is taken.
• Provide a right to be accompanied by a work colleague or Union rep at the meeting where dismissal is being considered.
• Consider before dismissal whether there are any suitable alternative vacancies which are available.
• After dismissal, offer a right of appeal and consider any appeal fairly.

Errors in any of these stages can cause a redundancy dismissal to be unfair. Demonstrably keeping an open mind throughout the redundancy process is advisable to reduce the risk of a successful unfair dismissal claim.

Further procedural steps are required if the duty to collectively consult is triggered – that is where at least 20 employees are proposed to be dismissed as redundant.

If you are an employer seeking advice on the redundancy of individual roles or collective workforce groups, please contact Charlie Barnes.