November provided a bit of respite for employers on the legislative front after the Employment Rights Bill’s introduction and the implementation of the duty to prevent sexual harassment in October. Employers will welcome EAT decisions on redundancies and protected conversations.
Chapter 1 A more conventional approach to small scale redundancies
Last year’s EAT decision in De Bank Haycocks v ADP RPO UK Ltd caused a bit of head scratching among employers and employment lawyers. It suggested that even if employers did not have a duty to consult about redundancies collectively, they might have to conduct some form of wider workforce consultation for individual redundancies to be fair.
The Court of Appeal has now restored a more orthodox approach to fair individual redundancy consultation. Consultation remains key but the Court of Appeal said that wider workforce consultation is not the usual standard for employers to meet. Whether consultation is fair is considered on a case-by-case basis. The key question is whether it takes place when it can still influence an employer’s decision.
On the facts of the case, although the employee had not had an opportunity to comment on proposed selection criteria in advance, his dismissal was still fair. The consultation was adequate and took place before the employer decided to dismiss. You can read more about the decision here.
Next steps
- The decision is helpful confirmation that individual dismissals in a small-scale redundancy situation won’t be unfair simply because an employer has not conducted some form of collective consultation.
- Individual consultation should include matters such as proposed selection criteria, ideally before selections are made.
- Redundancies will trigger collective consultation obligations more frequently in future, once the Employment Rights Bill removes the requirement for dismissals to be “at one establishment.”
Chapter 2 Evidence of a protected conversation not admissible
In Gallagher v McKinnon’s Auto and Tyres Ltd, the EAT found that an employer’s approach to a protected conversation was not improper and that the employee could not refer to it in his unfair dismissal claim.
After the employee took sick leave, the employer’s directors concluded that they could perform his duties and that his role was redundant. When he attended a return-to-work meeting, he was told that his role was redundant and verbally offered £10,000 in return for a settlement agreement. He was given 48 hours to accept, after which the employer would start a redundancy process. The parties didn’t reach a settlement.
In his unfair dismissal claim, the employee said that the employer behaved improperly during the protected conversation, so he should be able to refer to it during his claim. In particular, he was put under undue pressure to accept the offer because he was misled about the meeting’s purpose, was told he would be made redundant if he did not accept it and was only given 48 hours to consider his position instead of the 10 days recommended by ACAS.
The EAT upheld the tribunal’s decision that the employer had not behaved improperly. Although the directors told the employee his role was redundant, dismissal was not inevitable after a redundancy process, and he was not told he would be dismissed. Asking him to attend a return-to-work meeting when that was not its purpose was not necessarily fair, but it was not improper. Finally, ACAS recommends 10 days’ notice for an employee to respond to a written settlement agreement. Here the settlement offer was verbal, the employer provided a breakdown of the sum promptly when asked and the employee had sufficient time to discuss the offer with his family. The tribunal was not perverse when it decided that the employer had not behaved improperly.
Next steps
- What amounts to improper conduct is highly fact specific – the EAT recognised that another tribunal might have reached a different conclusion.
- The decision highlights that what is improper may be different in a redundancy situation from a misconduct scenario.
- The EAT decision makes it clear that telling an employee that they will be dismissed for misconduct if they do not agree to a settlement will put an employee under undue pressure because it undermines any ensuring disciplinary process.
[View source.]
