A former employee of a recruitment firm made redundant in 2020 was unfairly dismissed the Employment Appeal Tribunal concluded this week in Haycocks v ADP RPO, because of a flawed redundancy process.
Joseph De Bank Haycocks, a former employee at the UK recruitment process outsourcing arm of HR software giant ADP, won his appeal because the original employment tribunal had “overlooked aspects of the issue of consultation.”
In Haycocks v ADP RPO, the EAT judged that the redundancy consultation took place too late and so ruled the original tribunal erred, making the dismissal unfair.
On 19 June 2020, as the effects of Covid on the economy set in, ADP RPO UK set a timetable for a redundancy process involving 16 employees on the team handling the Goldman Sachs UK account. The initial consultation meeting was to be held on 30 June 2020. This was to be followed by a consultation period of 14 days, with those leaving being informed at a meeting on 14 July. The respondent called the claimant to a meeting on 30 June and he was told there was a requirement for redundancies.
A standard matrix of criteria from the US parent company had been used to mark for selection at the beginning of June. The 16-person team were scored 1 to 4 on 17 entirely subjective criteria, with Haycocks coming last in the rankings.
The original employment tribunal decision acknowledged that the scoring was in good faith and was not affected by any conscious bias. The claimant was not able to demonstrate that he should have scored higher.
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A final meeting was held on 14 July 2020 where the claimant was handed a letter of dismissal. Haycocks was unaware of the scores he had achieved and was not given the scores of the other 15 employees as a comparison.
During the consultation process, one of the team working on the Goldman Sachs account came forward to volunteer for redundancy. As a result, only the claimant was the subject of a compulsory redundancy dismissal.
The original tribunal noted that the scoring took place at the beginning of June 2020 before the later decision on 18 June on how many employees would be made redundant.
The claimant did have his scores by the time of an appeal meeting with his managers on 10 August, but he was never shown the comparative scores of his colleagues.
The original tribunal concluded that the appeal process was carried out “conscientiously”, but the appeal tribunal found that the absence of consultation at a stage where real change could be considered by the employer meant that possibilities of a different outcome were missing.
At the EAT, Mr Horan, acting for Haycocks, argued there “could be wide speculation as to what differences there might have been if consultation took place at an early stage; it was not only the potential for an impact on the criteria or scoring”.
He suggested that a proper consultation could even have seen the redundancies abandoned – citing a case of JCB workers who took a pay cut to avoid redundancy. He pointed out there was nothing within the factual findings of the original tribunal to explain why there was an absence of that early consultation and argued there was, in fact, no meaningful consultation because by the time the claimant was engaged, all the key decisions had been made. “The consultation was not real or transparent in his submission,” stated the EAT judgment in Haycocks v ADP RPO.
Dangers of using a US process
The EAT noted that the approach taken to employment law and good industrial relations varied significantly between nations. In this particular case, a tool for selection using entirely subjective criteria came, initially, from the US. It was understandable for ADP RPO UK to use a method used across the wider organisation internationally, but “the use of a system which reflects good industrial relations in another nation may not reflect the usual practice in the UK”.
The appeal concluded that the absence of consultation was sufficient to make the dismissal unfair. The employee’s appeal to his company could only correct any missing aspect of the individual consultation process (for example, the provision of the claimant’s own scores); it could not repair that gap of consultation in the formative stage.
The judgment laid out several guiding principles from previous case law. Among them was that “a fair consultation occurs when proposals are at a formative stage, and where the employee is given adequate information and adequate time to respond along with conscientious consideration being given to that response.” The purpose of consultation, it said, is “to avoid dismissal or reduce the impact of redundancies”.
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