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Case law: ‘Perfunctory and insensitive’ redundancy process needs justifying or dismissal may be unfair

Employers making employees redundant should avoid requiring them to take gardening leave during the consultation, or otherwise conducting the process in a perfunctory and insensitive, or risk the process being treated as unreasonable and unfair.

Legal Alert

This update was published in Legal Alert - January 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee of 40 years’ standing was dismissed by reason of redundancy following a strategic review. He argued that the consultation process was a sham, with a predetermined outcome, and claimed unfair dismissal. The Employment Tribunal (ET) strongly criticised the way the dismissal was handled, describing it as ‘perfunctory’ and ‘insensitive’. For example:

  • Even before the necessary consultation started he was put on immediate gardening leave, escorted from the office, told not to contact colleagues, suppliers or clients, and excluded from the work email system
  • During the consultation the company used the wrong first name on a letter it sent to him
  • His employer later gave him the wrong termination date, which it had to correct

Despite this finding, the ET went on to rule that the dismissal was fair.

On appeal the Employment Appeal Tribunal (EAT) found that the ET had "…failed to address … what, on the face of it, appears to be a particularly insensitive approach to the question of consultation, namely: sending him on gardening leave and prohibiting any contact with any colleagues or clients". Whereas a perfunctory and insensitive redundancy process does not automatically make a dismissal unfair, some sort of explanation is required.

The matter was remitted back to the ET for reconsideration.

Operative date

  • Now

Recommendations

  • Employers making employees redundant should avoid requiring them to take gardening leave during the necessary consultation, or otherwise conducting the process in a perfunctory and insensitive, or risk the process being treated as unreasonable and unfair

Case ref: Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd [2016] UKEAT 0134_16_0310

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.