ADP RPO UK Ltd v Haycocks

On 29 October 2024, the Court of Appeal handed down judgment in the case of ADP RPO UK Ltd v Haycocks. The decision addresses the principles governing the fairness of non-statutory redundancy consultations and is the first time that the Court of Appeal had confirmed that the ‘British Coal’ principles apply to an assessment of the fairness of a redundancy procedure.

Below, the Employment Appeal Tribunal had upheld the employee’s appeal of a finding that the employer’s redundancy process was fair. In doing so, the EAT held that even in non-unionised workplaces it is good industrial practice (and therefore ordinarily to be expected in a fair redundancy process) for the employer to engage in what it called “general workforce consultation”. That was problematic for the employer because no such workforce consultation had taken place on the facts and no reason had been shown for that departure from good industrial relations practice. The employer appealed to the Court of Appeal.

The Court of Appeal upheld the employer’s appeal. In doing so, it considered the principles which ought to govern an assessment of the fairness of the consultation process in non-statutory redundancies. In particular, it held:

1. In ordinary usage, collective consultation refers to consultation between the employer and representatives of the affected workforce as a whole on issues which are common to the affected workforce as a whole. Where collective consultation of this kind occurs, it may be sufficient for individuals to be consulted about issues peculiar to them in the course of their individual consultation meetings. However, where collective consultation of this kind does not occur, it is good practice for employees to be given the opportunity to express their views on any issue that may affect the risk of their dismissal or its consequences in the course of their individual consultation, whether that issue might be peculiar to them or common to the affected workforce as a whole. [52]
2. Nevertheless, the Employment Appeal Tribunal was wrong to suggest that it should be treated as a requirement of good industrial relations practice that an employer should conduct “general workforce consultation” (if that was intended to convey something other than a consultation meeting with an affected individual) in order to provide employees with an opportunity to comment upon issues common to the affect workforce as a whole. There is no rebuttable presumption that a dismissal will be unfair where there has been no consultation of that kind. The fairness of a consultation must be assessed on a case-by-case basis. [53] - [56]
3. The oft-cited passage of Glidewell LJ in R v British Coal Corporation ex p Price [1994] IRLR 72 to the effect that fair consultation means “consultation when the proposals are at a formative stage” could be applied in the context of the non-statutory obligation on an employer to consult about proposed redundances. What matters is that consultation takes place at a stage where it could make a difference to the outcome or, put another way, at a point at which the employee can realistically still influence the decision. [60]
4. It is good practice to give employees at risk of redundancy an opportunity to comment upon the selection criteria to be used before any scoring/selection exercise is undertaken. However, a failure to do so will not inevitably result in the redundancy process being unfair provided that the employer remained open during the consultation process to being persuaded that their choice of criteria is unfair or that the exercise was done by the wrong person and/or on the basis of inadequate information. [73]

Tristan Jones KC and Hollie Higgins represented Mr Haycocks pro bono via Advocate. The judgment is available here.