Individual redundancy consultation 




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




Before the meeting, the employer must provide details of the selection criteria and the member’s scores. The employer must also provide an explanation of the scoring method, 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).




A consultation process that is broadly fair and does not discriminate is likely to be judged adequate. Tribunals consistently refuse to “micro-manage” the detail of redundancy selection. They are not allowed to interfere by, for example, rescoring someone because they disagree with the employer’s original assessment. A procedure does not have to be perfect. It just needs to be broadly fair.




Even so, defects in a redundancy process, for example, lack of consistency in applying selection criteria, are still important, in particular because:



• they are likely to impact on the broad, overall fairness of the dismissal decision (Mental Health Care (UK) Limited v Biluan [2012] UKEAT/0248/12/SM); and




• they may indicate discrimination, victimisation or manipulation of the criteria to produce the employer’s desired outcome. 




On its own, failing to provide accurate (or even any) minutes of a redundancy consultation meeting will not make a dismissal unfair (Camelot PLC v Hogg [2011] UKEATS/0019/10/BI). 




A “perfunctory and insensitive” redundancy consultation made a redundancy dismissal unfair in the case of Thomas v BNP Paribas Real Estate Advisory and Property Management UK Limited [2016] UKEAT/0134/16/JOJ.



Whether or not a redundancy dismissal was fair depends on the overall process, including any appeal (Taylor v OCS Group Limited [2006] EWCA Civ 702). Acas recommends that the employer puts in place a formal redundancy appeals procedure. Where possible, the manager hearing any appeal should be senior to the original decision maker. Failing to permit a right of appeal can make an otherwise fair dismissal unfair (West Midlands Cooperative Society v Tipton [1986] ICR 192), because it denies the employee at risk of dismissal a chance to change the outcome (London Central Bus Company v Manning [2013] UKEAT/0103/13). 




In large-scale redundancies, employers sometimes use a “sifting” process, asking employees to appeal in writing first, identifying their specific issues of concern. Only employees who pass through this initial 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 (Camelot PLC v Hogg [2011] UKEATS/0019/10/BI). 




All good redundancy procedures allow those at risk to be accompanied to redundancy consultation meetings by a union rep or co-worker. There is no statutory right to be accompanied to a redundancy consultation meeting (Heathmill Multimedia ASP Limited v Jones [2003] IRLR 856). However, there is a statutory right to be accompanied to any grievance meeting about the redundancy process that concerns a legal right, such as non-payment of redundancy pay, victimisation or discriminatory targeting for redundancy. 




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).




The Acas Code of Practice on disciplinary and grievance procedures (see Chapter 10: Dismissal) does not apply to ordinary redundancy consultation meetings, but it does apply to individual grievance meetings about the redundancy process, such as allegations of discrimination or unlawful selection.



Employees have a legal right to see redundancy selection material that contains personal information about them by making a data subject access request (see Chapter 15). However, data protection laws do not allow workers to see data on management forecasting or planning such as future redundancy plans, where this would prejudice the conduct of the business. Advice on making a Data Subject Access Request can be found on the Information Commissioner’s website.