The Risks of ‘Perfunctory’ Redundancy Consultation

Can a ‘perfunctory and insensitive’ redundancy consultation render dismissal unfair? The EAT has held that it could do so in the recent case of Thomas v BNP Paribas Real Estate

Background

The Claimant had been employed by the Respondent since 1972 and was a Director in the Property Management Division.  Following a strategic review, it was decided that there were too many Director and Senior Director roles than required and 6 individuals were identified as at risk of redundancy. On 6 January 2014 the Claimant was written to.  He was told he was at risk of redundancy, immediately placed on ‘garden leave’, told not to contact clients and colleagues and asked to attend a consultation meeting the following day. 

A meeting followed on 7 January, with further correspondence on 8, 13 and 16 January, and the Claimant was provided with a list of vacancies and made alternative suggestions.  On 8 January the Respondent’s letter to the Claimant had the wrong name on it (Paul instead of Peter). A final consultation meeting took place on 13 February, immediately after a period of annual leave taken by the Claimant and his role was confirmed as redundant. A dismissal letter was sent on 14 February which had the wrong termination date in it. 

The Claimant was unsuccessful in his appeal in which he argued that the process was a sham and predetermined.  He also raised issues about his age as a number of his dismissed colleagues were also around the age of 60.  

The ET Decision

The ET criticised the Respondent for the manner of the consultation and the ‘insensitive’ mistakes it had made.  However, it did not find that the Claimant had been unfairly dismissed: 

“We are satisfied that the consultation was reasonable.  We do note that it was insensitive for the Respondent to get Mr Thomas’ name wrong and to insist that the consultation ended on 6 February, when in fact it ended on 13 February, but that does not make the consultation unreasonable.  For a valued employee with 41 years’ service, the process was handled in a perfunctory manner with a lack of sensitivity, but we are satisfied that the consultation did fall within the range of reasonable responses.”

The Eat Decision

The EAT quashed the decision, remitting the claim to a different employment tribunal. The EAT criticised the decision to put the Claimant on garden leave and to prohibit contact with colleagues during the consultation period. 

The EAT found it ‘troubling’ that the Tribunal could “call the manner of consultation perfunctory and insensitive and yet can conclude that it was a reasonable consultation.”  The EAT considered that if a Tribunal had made a finding that the consultation was conducted in a perfunctory and insensitive manner, then it would expect to see some reasoning as to why that consultation was ultimately reasonable.  The Tribunal had failed to address the consequences of its findings.  

What Can We Learn From This Decision?

This case is a reminder that taking care over the communications with employees during a redundancy process is vital, particularly where they are long serving. It also highlights the risk involved in putting an ‘at risk’ employee on paid leave during consultation. Whilst this will not necessarily render the dismissal unfair, in this case, it certainly contributed to the perception of the EAT that the consultation was perfunctory and unreasonable.

Caroline Glacken is a Senior Associate at Constantine Law Limited