Well, well, well…it’s Thursday and no blog…guess whose week it is???
Bingo, that is right its mine – Emma Tice! Always, unapologetically late in every single circumstance…apart from one! Last night I was actually on time – wow, hurrah…well that was as successful as my night was. So, what did we do I hear you ask? We joined the simply delicious people at Sunshine Support for their Christmas Wreath making masterclass. It was somewhat of a girlie affair with me, Alexandra MacAskill and Catherine Harrison heading over. Robyn Smith was supposed to join us too but is not well, so Catherine’s mum came too. Those of you who know us know how Catherine is the Boss, so that makes Catherine’s mum (which is what I insisted on calling her all evening) the Boss’s Boss!!
The mission was simple, follow the instructions laid out by lovely Abbie, and make a stunning wreath. I tried, I really tried. However, somehow I managed to do everything she said not to and consequently create a monster of a wreath – I cannot even tell you how long it took me and how heavy it is!!! Much laughter and tears (from me) ensued and generally it was just a lush evening. Super festive with festive nibbles and beverages (yummy!) wonderful people and lots of festive cheer. My wreath now sits proudly on my door (yes it does fit … just!) and it’s a wonderful reminder both of a fantastic evening and of the brilliant work that Sunshine Support do, supporting parents of children with special educational needs in many, many ways.
In fact, I had a very festive few days……well we are in December, I am sure that in a few weeks, if you cut me, I would bleed a mixture of cheese and mulled wine!
However, you didn’t just come here to hear all about my social calendar…oh no, it’s update time.
I’ve been really thinking about what to include as my update this week. There’s kind of an obvious thing that I could talk about: Gregg Wallace and the ever-growing list of allegations he is facing and the pressure the BBC are under (seemingly again!) over how they have handled things. But look, we’ve spoken to you about this at length now, haven’t we? I don’t want to tell you stuff you already know. You can read our previous blogs here and here.
What I want to focus on in my update in this week’s blog is something that we, unfortunately, may all need to get our heads around in the coming months and years. Not to be all doom and gloom, but it’s redundancy consultations.
I get it, the government’s budget announcement in October really has rocked the boat (particularly around NIC increases) and that means employers may well be looking at reducing costs through reducing headcounts or restructuring in some other way.
A recent Court of Appeal decision sheds some light on what and when we should be consulting affected employees on (bear in mind that even in that sense the government may change things but remember, we can only deal with what the law is now and deal with any concrete changes as they come about!). Now, this is a bit of a humble brag, but the case effectively reconfirms the approach that we advise our clients to take at Precept. Let me run you through it quickly.
The case is De Bank Haycocks v ADP RPO UK Ltd [2024]. Let me give you the lowdown of the facts:
- The employee (C) worked in recruitment in a team of 16.
- Demand for this role dropped in the early days of the Covid-19 pandemic and the employer (R) made the decision that it would need to reduce headcount in the team. No decision had been made at that stage about the level of reduction needed.
- During the start of June 2020, before any process had been announced or started, the manager of C’s team assessed staff against various selection criteria and C scored the lowest.
- On 18 June 2020 it was decided to reduce the team from 16 to 14. A formal redundancy process was started, and a first consultation meeting was held with the Claimant on 30 June 2020, at which he was informed of the situation and was told that he could ask any questions he had and put forward any alternative approaches he thought might work.
- R met with C on a number of other occasions and he was informed of the selection criteria. He didn’t raise any concerns about the selection criteria and was ultimately dismissed on 14 July 2020.
- C appealed and as part of that appeal he was informed of his scores against the selection criteria. He challenged the criteria and it’s application as part of the appeal and this was looked into and considered by the appeals officer but the appeal was ultimately not upheld.
C brought a claim for unfair dismissal in the Employment Tribunal (ET, not me!) The ET dismissed the claim. The EAT overturned the ET’s decision and then it went to the Court of Appeal.
What can we take away from the Court of Appeal’s decision? Well, the following:
- It’s good practice for the scope of redundancy consultations to cover the proposals as a whole. We always always, always advise you to seek affected employees’ views on any proposed new structure or reduced headcount before this is confirmed. At the start of the redundancy process, language like “could/may/might” should be used – everything should be presented as a proposal. Once you’ve sought employees’ input on the proposal and responded appropriately to anything they’ve had to say, then (and only then) should you confirm your decision about what you are going to do. Whether that is stick with your original proposal or make changes. Once that has been done, you can then move on to scoring exercises and consideration around alternative employment. HINT – remember this 2 stage process and you won’t go wrong!
- The consultation should occur when proposals are at a “formative stage” and by that we mean at a stage where it can make a difference to outcomes or where the employee can still influence decisions. What matters is that the employer has an open mind when it goes into consultation (particularly the first stage) and not how soon after the proposal was first formulated that the consultation occurs.
- It’s bad practice for employers to undertake a scoring exercise before any consultation takes place. This could lead to well-founded allegations that decisions have already been made and that the consultation process is pointless, meaning the dismissal is unfair. We would always advise against undertaking scoring exercises before consultation processes begin. Remember, anything you put in writing is disclosable as part of a Subject Access Request or as part of the disclosure process in litigation, so the employee is likely to find out.
- In this particular case, however, the Court of Appeal felt that if C had persuaded R during the consultation process that the criteria was flawed, it was not too late for the exercise to be re-done. They accepted this would have been inconvenient and would have resulted in delay, but it would have been reasonable for R to have rescored. Crucial to the Court of Appeal’s finding was the fact that, when C did challenge the criteria at appeal, this wasn’t just brushed aside and was, instead, looked into by the appeals officer. Which makes it pretty obvious that where employees raise matters as part of a formal process, no matter how annoying you think they are, you need to give them due consideration. Even if you’re not going to do much with them, you should still explain why that is the case. And, don’t under-estimate the importance of the appeal process. Make sure you get it right. It is not just a box ticking exercise.
I remain very hopeful that we aren’t going to see an increase in redundancy situations as we move into 2025, but it is always better to prepared isn’t it? Hopefully this gives you some extra ammo in your arsenal in case that is needed.
You can always contact Team Precept if you’ve got any questions on this sort of thing. And! Keep your eyes peeled because we may have this very topic coming up in our training schedule for 2025, including a new Precept Players Presentation (ooo!)
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