How a redundancy process is conducted can affect the fairness of the dismissal

Thomas v BNP Paribas Read Estate Advisory and Property Management UK

A high-level reorganisation highlights how the manner in which a redundancy process is completed can affect the fairness of a resultant dismissal.

Mr Thomas had been employed by BMP for 41 years and had risen to the level of director within the property management division of the business. In 2013 the company appointed a new head of the division who decided to undertake a strategic review. As a result, the company concluded there were more directors and senior directors than the business required, and so, in January 2014, six individuals, including Mr Thomas, were placed at risk of redundancy.

Mr Thomas was invited to attend an initial meeting to start the consultation process. An employee read from a pre-prepared set of notes and informed Mr Thomas that he was being placed on garden leave with immediate effect and that he was not to have any contact with employees, customers or suppliers of the business. At the same time, his access to the company’s IT systems and email were immediately cut. Details of his role and that of a colleague were leaked to a trade publication.

This was the first in a series of incidents which amounted to what the tribunal described as a ‘perfunctory and insensitive’ redundancy consultation. It was followed by correspondence in which Mr Thomas was addressed by the wrong name, was invited to the final consultation meeting immediately upon his return from annual leave, and a dismissal letter set out the wrong date of dismissal.

Mr Thomas claimed, amongst other things, that his dismissal was unfair and pre-determined. However, despite the label the tribunal attributed to the consultation process, it concluded that it had been reasonable and the dismissal was fair.

Mr Thomas appealed to the EAT who broadly agreed with the tribunal’s characterisation of the consultation process, but upheld the appeal. It noted with concern that, having described the consultation in very careful terms as ‘perfunctory and insensitive’, the tribunal then failed to clearly explain how it had not rendered the whole process unfair. Whilst it did not follow that it did, to use such express language and to be so critical of the process, required a clear explanation as to why it was not. As a result, the case was sent back to be re-heard by a different tribunal to assess the claim again.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2016/0134_16_0310.htm

Comment

This case clearly demonstrates that if you don’t approach a redundancy situation with sensitivity and respect to the employees involved, who are bound to be upset and vulnerable, there is a risk that any resultant dismissal will be found to be unfair. Despite the EAT’s comments that the insensitivity of the employer in this matter was not conclusive that the dismissal was unfair, both tribunals saw fit to criticise that conduct and expressed sympathy for Mr Thomas. That alone places an employer at risk of an adverse finding of fact at a contested hearing, and could also lead to bad publicity at what is a public hearing.