Factual and Procedural Background
The Defendant, Company A, operated a recruitment process outsourcing business primarily for a major client in The City. The Plaintiff began employment with Company A in London on 16 October 2017 as a sourcer. Due to a reduction in vacancies caused by the Covid-19 pandemic, Company A decided in May 2020 to make redundancies within the Plaintiff's team of sixteen London employees and four Warsaw employees. Following a selection process involving a scoring matrix, the Plaintiff was dismissed for redundancy on 14 July 2020. The Plaintiff appealed the dismissal internally but the decision was upheld.
On 16 October 2020, the Plaintiff commenced unfair dismissal proceedings in the Employment Tribunal (ET). The ET hearing took place remotely in July 2021 before Employment Judge Goodman, who dismissed the claim. The Plaintiff appealed to the Employment Appeal Tribunal (EAT), where two grounds were initially allowed to proceed, with a further ground permitted later. At the EAT hearing in September 2023, the Plaintiff abandoned two grounds and pursued one ground relating to the consultation process. The EAT allowed the appeal, finding unfair dismissal due to an absence of proper consultation, and remitted the case to the ET for remedy determination.
The Defendant obtained permission to appeal the EAT decision. The appeal was fully argued by counsel for both parties.
Legal Issues Presented
- Whether the redundancy consultation process was conducted fairly and at a formative stage, specifically addressing if the dismissal decision was effectively made before consultation commenced.
- Whether the Employment Tribunal erred in law by failing to properly consider the Plaintiff’s contentions regarding the timing and fairness of the consultation process.
- Whether there is a requirement of general workforce consultation in smaller-scale redundancies within non-unionised workplaces as a matter of good industrial relations practice.
- Whether the failure to provide the Plaintiff with his scoring details prior to dismissal affected the fairness of the dismissal.
- Whether the internal appeal process cured any procedural unfairness in the redundancy dismissal.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| De Grasse v Stockwell Tools Ltd [1992] IRLR 269 |
Consultation is essential in every redundancy process. |
Referenced by the EAT to support the requirement of consultation at a formative stage. |
| Crown v British Coal Corporation ex parte Price & Others [1994] IRLR 72 |
Fair consultation requires: (a) consultation at formative stage; (b) adequate information; (c) adequate time; (d) conscientious consideration of responses. |
Used as a key authority to define the elements of fair consultation in redundancy processes. |
| Polkey v A.E. Dayton Services Ltd [1988] AC 344 |
Employers normally must warn and consult affected employees or their representatives. |
Affirmed as a guiding principle for consultation obligations. |
| Freud v Bentalls Ltd [1983] ICR 77 |
Purpose of consultation is to avoid dismissal or reduce its impact. |
Referenced to emphasize the aim of consultation in redundancy situations. |
| Lloyd v Taylor Woodrow Construction [1999] IRLR 782 |
An appeal may cure earlier procedural failings making the overall redundancy process reasonable. |
Applied to find that a fair internal appeal can remedy procedural unfairness in dismissal. |
| Taylor v OCS Group Ltd [2006] ICR 1602 |
Tribunal must consider the entire redundancy process and reasonableness of dismissal. |
Supported the principle that the whole process, including appeal, is relevant to fairness. |
| Mugford v Midland Bank plc [1997] ICR 399 |
Consultation adequacy is a question of fact and degree; lack of consultation in some respects is not automatically unfair. |
Recognized that consultation requirements depend on circumstances. |
| Camelot Group plc v Hogg UKEATS/0019/10 |
Provision of scoring details is not essential to a fair consultation process. |
Used to support that specific elements like scoring disclosure are not mandatory for fairness. |
| British Aerospace plc v Green [1995] ICR 1006 |
Use of scoring systems does not automatically make redundancy processes fair; relevance of scores depends on case specifics. |
Applied to assess the role of scoring in the fairness of the redundancy process. |
| Williams v Compair Maxam Ltd [1982] ICR 156 |
Good industrial relations practice requires consultation with recognised trade unions or representatives. |
Discussed in relation to the requirement of collective or general workforce consultation in redundancy. |
| Mental Health Care (UK) Ltd v Biluan UKEAT/0248/12 |
Consultation adequacy varies with presence or absence of collective consultation; individual consultation may be limited accordingly. |
Analyzed to consider the nature and scope of consultation in non-unionised workplaces. |
| Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] UKEAT 139, [2023] IRLR 44 |
Consultation must occur at a formative stage where input can realistically influence outcomes. |
Considered to clarify the timing requirement of consultation. |
| Langston v Cranfield University [1998] IRLR 172 |
Employment tribunals must consider the main elements of a fair redundancy process, including consultation, even if not expressly raised. |
Referenced in argument but found not applicable to the scope of the present appeal. |
Court's Reasoning and Analysis
The court began by reviewing the facts of the redundancy consultation process, noting that the scoring exercise determining redundancies was completed before the consultation period commenced. The Plaintiff was not informed of his scores until after dismissal, which was acknowledged as an error by the Defendant. However, the court found that the internal appeal process constituted a conscientious and effective investigation of the Plaintiff's complaints about the scoring and consultation.
The court considered the EAT's introduction of a requirement for "general workforce consultation" at a formative stage in non-unionised, smaller-scale redundancy situations. It rejected this as a prescriptive standard of good industrial relations practice, emphasizing instead the established case law that consultation adequacy depends on the facts and circumstances of each case.
Regarding the timing of consultation, the court affirmed the principle from British Coal that consultation must occur at a formative stage—meaning when the employer's mind is still open to influence. While it was poor practice to complete scoring before consultation, the court found this did not amount to an irrevocable decision since the scoring could have been redone if challenged during consultation.
Crucially, the court accepted the Employment Judge's finding that the Plaintiff did not challenge the selection criteria during the consultation meeting and that the appeal process adequately addressed his concerns. Thus, the failure to inform the Plaintiff of his scores before dismissal did not materially affect the fairness of the dismissal.
The court also held that the EAT erred in deciding the appeal based on a point (the absence of general workforce consultation) not raised in the ET or the grounds of appeal. It found no material error of law in the Employment Judge's overall conclusion that the redundancy process was fair.
Holding and Implications
The court ALLOWED the Defendant's appeal, setting aside the EAT's decision and restoring the Employment Tribunal's original dismissal of the unfair dismissal claim.
This decision directly affects the parties by reinstating the finding that the redundancy dismissal was fair. The court clarified that there is no general requirement of group or "general workforce" consultation in smaller-scale, non-unionised redundancy situations beyond established principles. It confirmed that procedural fairness must be assessed on the facts and that internal appeals can cure certain procedural defects. No new precedent altering the legal standards for redundancy consultation was established.