Unfair Dismissal and Redundancy
The ET had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation is a fundamental aspect of a fair procedure see Williams v Compare Maxam Ltd [1982] ICR 156 and Polkey v A E Dayton Services [1987] IRLR 503; [1988] ICR 142 (HL). This aspect applies equally, with appropriate adaptation, to redundancy situations where there is no collective representation see Freud v Bentalls Ltd [1982] IRLR 443. In order that consultation is ‘genuine and meaningful’ a fair procedure requires that consultation takes place at a stage when an employee or employee representative can still, potentially, influence the outcome. In circumstances, as here, where the choice of criteria adopted to select for redundancy has the practical result that the selection is made by that decision itself, consultation should take place prior to that decision being made.
It is not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decides the pool of employees and which employee is to be dismissed. The implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection for redundancy. Whilst a pool of one can be fair in appropriate circumstances, it should not be considered, without prior consultation, where there is more than one employee.
Citations:
[2022] EAT 139
Links:
Jurisdiction:
England and Wales
Employment
Updated: 17 November 2022; Ref: scu.682475