Individual redundancy 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 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 individual 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



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



A consultation process that is broadly fair and not discriminatory is likely to be judged adequate by an employment tribunal. Tribunals consistently refuse to “micro-manage” the detail of redundancy selection. Tribunals 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 is enough that it is 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 relevant when assessing 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. 



Failing to provide accurate (or even any) minutes of a redundancy consultation meeting will not, of itself, 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 recent case of Thomas v BNP Paribas Real Estate Advisory and Property Management UK Limited [2016] UKEAT/0134/16/JOJ.


All good redundancy procedures include a right of appeal and 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. 



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. Provided 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 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 a grievance meeting about the redundancy process concerning, for example, 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 right under the Data Protection Act 1998 (DPA 98) to see redundancy selection material that contains personal information about them by making a data subject access request (see page 143). 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 (https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/subject-access-request).