In the case of De Bank Haycocks v ADP RPO UK Ltd the claimant (Mr De Bank Haycocks) worked as a recruitment consultant for his employer (ADP Ltd, a UK subsidiary of a US company) as part of a team of 16, who were employed solely to recruit employees for one particular investment bank.

The impact of the coronavirus pandemic reduced the bank’s requirement for recruitment services by around 50% so it decided to reduce the client team headcount. The UK manager was given a standard matrix of selection criteria from the US parent company, which she used to assess 16 employees. Each employee was scored between 1 and 4 on 17 entirely subjective criteria with Mr Haycocks coming last in the ranking. Following this the US parent company decided the team had to lose two roles. 

The claimant was invited to a meeting at which he was told that there was a requirement for redundancies, and that he could ask questions and suggest alternative approaches. He was then invited to a further meeting two weeks later and a final meeting a week after that at which he was handed a letter of dismissal. In these meetings the claimant was unaware of what scores he had achieved and was not given the scores of the other 15 employees as a comparison to understand his ranking. The claimant appealed against the dismissal decision. At the time the appeal meeting was held he had been given his score, but his appeal was unsuccessful. 

He claimed that the dismissal was procedurally unfair due to a lack of any meaningful consultation and a subjective scoring process. This was inaccurate, it had ranked him too low, and he had not been given the opportunity to challenge the procedure. An employment tribunal held the dismissal to be fair. It accepted that the claimant didn’t know his scores until after his dismissal but concluded that the appeal process was carried out conscientiously and that the claimant had not demonstrated that his score should have been higher.

Appealing to the EAT the claimant argued that the consultation exercise was unfair; there was, effectively, a decision to dismiss three weeks before commencement of consultation; the employment tribunal had not considered the consultation on the scores and the criteria behind them adequately or at all, and it had overlooked the need for consultation.

The EAT allowed his appeal, substituting a finding of unfair dismissal and decided to remit the claim back to original employment tribunal to determine remedy.

Key findings of the EAT

The EAT held there had been a clear absence of meaningful consultation by the employer during the formative stage of the redundancy process and the tribunal did not explain why there were good reasons for concluding, in these particular circumstances, that the redundancy process was procedurally fair and reasonable. In the EAT's view, on the facts there was no good reason for the employer not to have undertaken what the EAT described as "general workforce consultation". The EAT reflected that for large scale redundancies (affecting 20 or more employees), statutory collective consultation legislation requires that employee (or trade union) representatives are consulted at the formative stage of a potential redundancy situation. The requirements are less clear for unrepresented employees during a small-scale redundancy process. However, when conducting redundancies, reasonableness reflects what is considered to be good industrial relations practice and that employers should engage in consultation with employees at the early stages of a redundancy process. Employees should be provided with sufficient information, the opportunity to propose alternatives to redundancy and adequate time to respond, in line with fair dismissal procedure.

The EAT also reflected on where, as is increasingly common, there is an international dimension, what constitutes good industrial relations will vary significantly between countries. In this case, the US parent company’s subjective selection criteria may not have reflected the usual practice in the UK (although it did not comment on the nature of the selection criteria). In summary, in this particular case, the EAT concluded that the employment tribunal had failed to address the absence of consultation at a formative stage of the redundancy process. As for the appeal by the claimant, it held that while this could correct any missing aspect of the individual consultation process (eg the provision of the claimant's own scores) it could not remedy the initial failure to consult at an earlier stage.