Individual consultation

An employer who has provisionally selected an employee for redundancy must write to that employee warning of the risk of redundancy and inviting 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, individual scores, and an explanation of the scoring method. The employer must provide an adequate explanation of the scores, 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). As long as the employer adopts a process that is broadly fair and not discriminatory, it is likely to be judged adequate. A tribunal 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 not irrelevant. On the contrary, they should be taken into account when considering the overall fairness of the dismissal decision (Mental Health Care (UK) Limited v Biluan [2012] UKEAT/0248/12/SM).

It is not necessarily unfair for an employer to refuse to provide minutes of a redundancy consultation meeting, or other general documentation produced during the selection process (Camelot PLC v Hogg [2011] UKEATS/0019/10/BI). It is therefore sensible advice, when asking for any particular document, to explain in writing the particular reason why it is needed, and the difference it could make to the final decision.

Employees have a right under the Data Protection Act 1998 (DPA 98) to access redundancy selection material that contains personal information about them. Advice on making a Data Subject Access Request can be found on the Information Commissioner’s website. 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.

There is no absolute 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 emphasise issues, such as individual scoring, or failure to offer a particular suitable alternative role, which might have made a difference to the final outcome.

In its Guide to redundancy handling, Acas recommends the establishment of a redundancy appeals procedure. Where possible, the manager hearing any appeal should be senior to the original decision maker. 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).