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Background

The claimant (and his colleagues) were not consulted about redundancy proposals. The employer started their processes with pooling and scoring. The claimant’s dismissal was unfair due to the lack of early consultation about the redundancy proposals (amongst other reasons).

Practical takeaway

Start early – this case is a reminder that you should start consultation at an early stage, ensuring enough information is being provided and enough time is given for employees to respond (and for those responses to be considered carefully).

Correcting the past – interestingly, the EAT held that the employer’s appeal (held at the claimant’s request) could not correct the lack of consultation which should have happened with the workforce at a much earlier stage.

Purpose of consultation – the case again reminded that consultation should be all about avoiding dismissals or reducing the impact of redundancies. The lack of early consultation meant this was not possible, therefore making the process unfair.

Notice – if you have the contractual right you could place the individual on garden leave or pay them in lieu of notice. Alternatively, you could ask them to serve out their notice.

Redundancy pay – this is based on the individual’s length of service on the last day of their employment (the government calculator is a useful tool). Don’t forget that if you have a redundancy policy it may require you to pay amounts greater than the statutory redundancy payment.

Holiday – employees are entitled to holiday pay for accrued untaken leave when they depart. This can be paid as a lump sum or with appropriate notice you can require them to use their remaining holiday during their notice period.

Outplacement – a great way of reducing the possibility of litigation and creating a positive end to employment. The individual secures CV writing skills, support with job search, coaching and interview skills training. Get in touch if you’d like to find out more.

We explain how simplifying the redundancy process creates better business and people outcomes, specifically:

• Exactly what ‘simplifying’ the process means for your business and people
• How to leverage technology to create a smoother and more compassionate people experience during redundancy
• How a simplified process will allow you to manage more effectively the mental health and productivity impact of a redundancy process

The session includes employment law, HR technology, outplacement and coaching expertise from across our Empowering People Group to share unique insights covering every stage of the process. Definitely worth a watch!

Compare and contrast – the suitability of a role is determined by comparing the individual’s current ‘at risk’ role with the role available. Salary, place of work, skills required and aptitude for the role are all factors you can use to determine whether the available role is a suitable alternative.

Be specific – it’s not good enough just to give the employee a list of available roles – you need to search out the roles that could be suitable alternatives.

Bigger picture – if you’re part of a group of companies, your search for suitable alternatives should be group-wide.

First in line – if the ‘at risk’ individual is on maternity leave, they must be offered the suitable alternative role ahead of any other individual who might also be suitable for the role. Also, watch out for new legislation that extends this right.

Objective, measurable selection criteria – if not, it’s likely to result in an unfair dismissal. Ensure that you consult on the selection criteria that you’d like to use so that each individual has the opportunity to have their say before scoring starts. Click here for our suggested selection criteria.

Avoid discriminatory selection criteria – if it’s based on length of service, absence or flexibility, it could be considered discriminatory based on age, disability or sex respectively. Ensure that you make adjustments so that the criteria do not prejudice those with protected characteristics, or avoid using them entirely.

Fair scoring – ensure that your selection criteria feature on a scoring matrix with clear parameters. Ideally, ensure that any score is justified with evidence as to why it has been awarded.

Verification of manager scores – ensure a manager with the ability to find evidence or measure the individual against the selection criteria carries out the initial scoring. Get another manager to verify their scores (preferably one with knowledge of the employee).

Consult about scores – individuals have the right to know their scores, as well as being given evidence supporting the scores and the breakpoint they had to achieve to avoid redundancy. They can challenge their scores, possibly resulting in re-scoring if there is merit to their objections.