Individual consultation

An employer who has provisionally selected an employee for redundancy must write to that employee warning of the risk of redundancy and invite them to a consultation meeting (Alexander and Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422).

Before the meeting, the employer must provide details of selection criteria used and individual scores. The employer must also provide an explanation of the scoring method, in order to give the employee a genuine opportunity to challenge the decision (Pinewood Repro Limited t/a County Print v Page [2010] UKEAT 0028).

Employers do not need to provide the scores of other employees (British Aerospace v Green [1995] IRLR 433).

Fair consultation includes:

• giving the person a proper opportunity to fully understand the issues and to express their views; and

• giving genuine consideration to those views.

R v British Coal ex parte Price [1994] IRLR 72

There should be individual consultation at every stage of the redundancy process, once an employee has been provisionally identified as at risk.

A consultation process that is broadly fair and not discriminatory or otherwise unlawful, is likely to be judged adequate. Tribunals will not “micro-manage” redundancy processes (First Scottish Searching Services Limited v McDine [2011] UKEAT/0051/10). However, procedural defects such as lack of consistency in applying selection criteria are still important because they are relevant to the overall fairness of the dismissal decision (Mental Health Care (UK) Limited v Biluan [2012] UKEAT/0248/12/SM).

Failure to provide minutes of a redundancy consultation meeting, or other general documentation produced during the selection process, will not necessarily make a dismissal unfair (Camelot PLC v Hogg [2011] UKEATS/0019/10/BI). It is likely to be unfair where the information could have made a difference to the end result.

Employees have a right under the Data Protection Act 1998 (DPA 98) to access redundancy selection material that contains personal information about them. However, the DPA 98 does not entitle workers to data on management planning where this would prejudice the conduct of the business, for example, future plans about redundancy or reorganisation. Advice on making a Data Subject Access Request can be found on the Information Commissioner’s website.

All good redundancy procedures will include a right of appeal and Acas recommends using a redundancy appeals procedure. Where possible, the manager hearing any appeal should be senior to the original decision maker. However, there is no absolute legal right to an appeal hearing against a redundancy decision, so employees who want to appeal should make sure their request is as specific as possible and should clearly identify specific issues, such as individual scoring, or failure to offer a particular suitable alternative role, which might have made a difference to the final decision.

In large scale redundancies, employers sometimes use a “sifting” process, requiring employees to appeal in writing initially, identifying specific issues. Only employees who pass through this sifting process are offered a full hearing. As long as the overall selection process is fair, “sifting” in this way will not make a dismissal unfair (see Camelot PLC v Hogg [2011] UKEATS/0019/10/BI).

All good redundancy procedures allow at risk employees to be accompanied to redundancy consultation meetings by a union rep or co-worker, although there is no statutory right to be accompanied (Heathmill Multimedia ASP Limited v Jones [2003] IRLR 856). There is, nevertheless, a statutory right to be accompanied to grievance meetings about the redundancy process, for example, over allegations about non-payment of redundancy pay, or discriminatory selection processes.

Special arrangements to be accompanied should be made for disabled or young workers, or those who do not speak English as a first language (see Chapter 10: Right to be accompanied).