When carrying out a redundancy consultation prior to dismissing an employee, employers have to ensure that the consultation is meaningful and not a sham. In Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd, the Employment Appeal Tribunal (EAT) held that if a tribunal finds that the consultation process was “perfunctory and insensitive”, then any dismissal is likely to have been unfair.
As a result of a strategic review in 2013 of the division in which Mr Thomas worked, five people were identified as being at risk of redundancy, including Mr Thomas. However, rather than including all five people in the selection pool for redundancy, it was decided that he should be in a pool of one.
Mr Thomas was informed in January 2014 that he was at risk of redundancy and was sent home on special paid leave with strict instructions not to contact any clients or colleagues. He attended a formal consultation meeting the next day at which he suggested an alternative job in relation to a particular client, but was told there was no role open on that account. The company then wrote to him confirming what had been discussed and that the consultation period ended on 6 February (although in fact it ended on 13 February). It addressed the letter to “Dear Paul” although his name was Peter.
After a final consultation meeting in February, Mr Thomas was told that as there were no suitable alternative vacancies, he would be made redundant with effect from 6 May (although that turned out to be the wrong date). Mr Thomas appealed against the decision, arguing that the consultation process was a sham with a predetermined outcome and that he had been selected because of his age (he was 60), as had a number of other colleagues of a similar age. His appeal was rejected.
Mr Thomas lodged claims for unfair dismissal and age discrimination, among other things.
The tribunal found that the company had held consultation meetings as soon as possible after the review, and that Mr Thomas had failed to engage with the process of considering alternative employment.
Although the tribunal accepted that it was “insensitive” of the company to get his name wrong in the letter it sent him along with the other procedural mistakes it had made, it held that the redundancy was not pre-determined and that the consultation was reasonable. Mr Thomas had therefore been dismissed by reason of redundancy. The tribunal dismissed the claim for age discrimination as there was no evidence to show that the company had a practice which involved dismissing people who were approaching age 60.
Describing the tribunal’s decision as “troubling”, the EAT pointed out that it had failed to address its own criticisms of the way the company had carried out the redundancy process, including its description of the consultation as “perfunctory and insensitive”. As the tribunal had failed to appreciate or address the potential consequences of its findings which were critical of the company’s process of consultation, its decision that the consultation was reasonable could not stand. It therefore upheld Mr Thomas’s appeal with regard to the finding of unfair dismissal and remitted the matter to another tribunal.
As for the decision in respect of age discrimination, the EAT was satisfied that the tribunal had applied the law correctly. Having considered (and rejected) the evidence put forward by Mr Thomas about other colleagues of a similar age being dismissed, the tribunal was entitled to come to the view that the reason for dismissal was redundancy and not age.
The decision is a useful reminder that the obligation to consult in a redundancy situation applies throughout the redundancy process and not when a decision to dismiss has already been made. A failure to properly consult an employee in these circumstances is very likely to result in a finding of unfair dismissal.