Although the prospect of unemployment can seem inevitable after the words ‘at risk’ are mentioned, the law provides protection to ensure employees with at least two years’ service are not dismissed unfairly. An employer must show that redundancy was the real reason for the dismissal and, in reaching that conclusion, it followed a procedure which was reasonable.
A ‘reasonable’ procedure involves the employer conducting meaningful consultation with the employee at an early stage, providing adequate information to them, giving them time to respond and then genuinely considering their response.
In the case of Thomas v BNP Paribas, the Employment Tribunal concluded that the employer’s consultation process had been ‘insensitive and perfunctory’ but nonetheless, concluded that the process was reasonable and that the dismissal was fair. On appeal, the Employment Appeal Tribunal (“EAT”) took a different view.
The employee had worked for the employer for 40 years and held a senior managerial position. The employer conducted a strategic review of its business and invited the employee to a short meeting where he was informed that his job was ‘at risk’. Immediately following the meeting the employee was put on paid leave and told not to contact colleagues or clients and that his access to the employer’s IT system would be stopped. The Tribunal noted that throughout the consultation the employer made several insensitive administrative errors in correspondence, mistakenly addressing a letter to the employee as ‘Paul’ when his name was Peter and providing inaccurate critical dates.
The employee brought claims for unfair dismissal and age discrimination. The Employment Tribunal considered that there was a genuine redundancy situation and that, although the consultation was handled ‘insensitively and in a perfunctory manner’, this did not mean it was not conducted reasonably.
On appeal, the EAT highlighted the disconnect between the Tribunal’s finding of reasonableness and its conclusion that the consultation had been conducted in an insensitive and perfunctory manner by putting the employee on garden leave and prohibiting any contact with colleagues or clients immediately after the first meeting, as well as the careless clerical errors. Although these facts would not inevitably mean the consultation had been conducted unfairly, given the acknowledgement from the Tribunal that it considered the process had been handled in an ‘insensitive and perfunctory’ manner, the EAT found it ‘troubling’ that the Tribunal did not justify why it then concluded nonetheless that the process was reasonable. Consequently, the EAT quashed the decision, remitting the claim to a different Employment Tribunal the question of reasonableness.