The Employment Appeals Tribunal has ruled that the dismissal of a senior human resources manager for redundancy was fair – despite the lack of any meaningful consultation with the employee prior to dismissal.
The general position is that a redundancy dismissal will be unfair if no consultation has taken place.
However, it has been recognised, in a number of limited cases in the past, that there may be exceptional circumstances which make consultation “utterly futile”.
Whilst a finding of unfair dismissal would be made, it is then open to the Tribunal to make a reduction of compensation (sometimes to nil) reflecting the fact that consultation would not have made any difference to the outcome.
This line of authority is not generally relied upon given the risk associated with not consulting with employees but this case does give a helpful demonstration of when a Tribunal will categorise consultation as futile.
The employee in question was employed for 10 years by the employer working as a human resources manager between 2007 and 2012.
In March, 2010, when the business was performing extremely poorly, a restructure was implemented and four senior executive roles were introduced above the employee’s level.
A human resources director was appointed to one of those positions without the employee being made aware of the vacancy.
The employee’s existing duties were absorbed between the pay roll department and the new director and the extent of the consultation was simply that the employee was brought to a meeting and dismissed immediately for redundancy.
At the Employment Appeals Tribunal, it was held that the company was right to take highly sensitive commercial decisions involving reorganisation at a higher level without informing the employee.
Another fundamental issue in the case was the issue of alternative employment and whether the employee should have been considered for this.
However, it was clear to the Appeals Tribunal that the external candidate had qualifications which were “in a different league” to those of the employee and it was reasonable to come to the conclusion that he would not have been suitable for that role having assessed his capabilities over the previous 18 months.
In all the circumstances, it was held that it was reasonable not to consult and the dismissal was fair.
This case must not be interpreted as giving employers the right to rush through the redundancy procedures and it is very fact sensitive.
Generally, businesses are required to demonstrate that a comprehensive and meaningful consultation process has been entered into prior to taking the decision to dismiss by reason of redundancy.