Employer’s Duty to Consult – Redundancy

Putting an employee at risk of redundancy can be unpleasant and uncomfortable, and it can be tempting to get the whole process over with as quickly as possible. In the case of Thomas v BNP Paribas, the EAT emphasised that a “perfunctory and insensitive” approach to redundancy consultation can make a dismissal unfair.

Mr Thomas, who had worked for BNP Paribas for over 40 years and held a senior role, was placed at risk of redundancy. He was the only employee placed at risk because he was responsible for managing a client account that had been lost by the firm. He was told to stay away from the premises during consultation and not to contact other employees or customers. His computer system and email access were disabled, and he was told not to use his company mobile phone.

Shortly afterwards, as part of the consultation process, a letter was written to him addressed “Dear Paul” when his name was Peter (arguably a small slip, but something that the employment tribunal held against his employer at the hearing). When he was ultimately made redundant he brought a claim for unfair dismissal.

The employment tribunal heavily criticised his employer for conducting consultation in a “perfunctory and insensitive” manner, pinpointing the decision to place Mr Thomas on garden leave which isolated him from colleagues and arguably prevented him from taking a full and active part in consultation. Despite these failings, the employment tribunal found that the dismissal had been fair. The EAT disagreed with that decision, finding that the initial poor handling of the consultation suggested that the outcome was predetermined.

It is important to handle a redundancy process with thought and care from the outset, paying attention to the smallest of details (for example making sure that any template correspondence is correctly modified). Consultation must be genuine and meaningful. Any indication that an employer is simply ‘going through the motions’ of consultation while the outcome is predetermined may result in an unfair dismissal.

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