There is no strict legal obligation (yet), but there is a growing sense that individual redundancies should be dealt with in the same way as collective redundancies.
The Court of Appeal decision in ADP RPO PRO UK v Haycocks looked at what the obligations are on employers. Times are a’changing…
Historically, the obligations on employers around making fewer than twenty redundancies have been less onerous than the collective consultation duty. This appears to no longer be the case following a raft of Employment Appeal Tribunal decisions around redundancy. Although the Supreme Court has refused permission to appeal in Haycock, the Court of Appeal made it clear that the thinking around this has shifted.
For claimants/employees, this is good news because historically, challenging redundancies in the Employment Tribunals have been extremely difficult. The landscape appears to be moving in favour of employees. Again, not a bad thing given the issues with even managing to get a case listed because of the lack of judicial resources in the Employment Tribunals.
So, what are the principles that are emerging around individual redundancies from Haycock’s and other recent cases?
In Mogane, the sole selection criterion for redundancy was the expiry of a fixed-term contract. The EAT held that consultation should have taken place when the employee could have influenced the outcome. The claimant had no ability to challenge, with only one criterion that set the decision in stone.
In Texeira, there had been no process at all, and conveniently, a pool of one person was put at risk. It is acknowledged that a pool of one could be used to get rid of a chosen employee. Greater scrutiny is expected in cases where there is a pool of one. An employer must consult so that any change to the pool or the outcome can be considered.
In Valimulla, there was a pool of one despite other employees in other locations doing the same work. Was the pool of one reasonable? Did the employer genuinely apply its mind to the pool? Was it a pool of one within the range of reasonable responses?
In Hendry Group v Kennedy, the employer had done nothing about suitable alternative employment. Kennedy was treated as an external applicant for vacant roles. He could apply for jobs via a website in the same way as external applicants. HR communicated with him via an email he had no access to. There was no evidence of steps to assist. There was no consultation or conversation around alternative roles. Reasonable employers would have been more involved and had discussions
about alternative roles.
If you are at risk of redundancy and something seems off, take early legal advice.
This blog was written by Elizabeth McGlone, Managing Partner of didlaw.
