Consult, then select — or dismissal is unfair

Mr Tattersall was in a senior management team of five (the SMT). To cut costs, the brewery’s board of directors decided to make one redundancy from within the SMT. Without engaging in consultation, the board identified his role as the least risky to eliminate as it was not income generating. They then identified him as the only member of the SMT who lacked revenue generating skills. Later, staff were told of the risk of job losses and four individual consultation meetings took place with Mr Tattersall, leading to his redundancy.

The tribunal decided that the dismissal was unfair because he was not given any opportunity to argue against his selection.

The ruling

On appeal, the EAT agreed with the tribunal that the procedure used in this case was unfair. Tattersall had been given no chance to persuade his employer that another member of the SMT should be selected instead of him. The evidence was clear that the employer had already made up its mind about his redundancy before the first consultation meeting.

Commentary

The employer could have carried out a fair redundancy by consulting with all the members of the SMT, listening to their arguments and then deciding who should be selected.

As well as being fairer, the process would have been better for the business, as new cost-saving or income generating ideas, or previously hidden skills might have emerged during the consultation.

Mitchells of Lancaster (Brewers) Limited v Tattersall UKEAT/0605/11/SM