In ADP RPO UK Ltd v Haycocks, the Court of Appeal rejected the EAT’s earlier suggestion that there is a requirement for ‘general workforce consultation’ in non-unionised small-scale redundancy situations (where less than 20 redundancies are proposed) in order for a dismissal to be fair.
Facts:
The Claimant, Mr De Bank Haycocks was employed by ADP. In March 2020, given the reduced demand for services during the pandemic, ADP made a number of redundancies.
In June 2020, ADP’s parent company (US based) instructed ADP to carry out a pooling and selection process. The Claimant scored last. A consultation period began, which involved two individual consultation meetings followed by dismissal for the redundant employees.
During the consultation, the Claimant was provided with an opportunity to ask questions and suggest alternatives. The Claimant was not provided with his selection scores.
The Claimant appealed his redundancy and as a result, was provided with his selection scores. He was unsuccessful at appeal and brought an unfair dismissal claim to the Employment Tribunal.
The Employment Tribunal originally found the Claimant’s dismissal to have been fair. Whilst he had not been provided with his selection scores at the outset, this was rectified on appeal. There were no concerns with the selection pool used and the Claimant had been unable to show any issues with the scoring.
The Claimant appealed to the EAT. The Employment Appeal Tribunal (EAT) upheld the appeal and found the dismissal to be unfair. It found that ADP had failed to meaningfully consult with employees before the decision was made to proceed with redundancies. As a result, the Claimant was unable to influence the decision to make redundancies. This resulted in an unfair process which could not be, and was not, remedied on appeal.
However, in late 2024, the Court of Appeal overturned the decision, explaining that whilst it is good practice for employees to be given an opportunity to express their views on issues that may affect the risk of dismissal, this can be done during the process of individual consultation without the requirement for early workforce consultation. Underhill DJ went on to say that “Group meetings may… be a useful way of ascertaining the views of employees, but their appropriateness will depend on the circumstances”.
The Court of Appeal confirmed the application of the principle from R v British Coal Corporation ex p Price [1994] IRLR 72 that fair consultation means consultation when the proposals are at a formative stage, but expanded that this meant at a stage where consultation could make a difference to the outcome of the exercise or influence the redundancy decision.
Notably, it highlighted that it is good practice to give affected employees an opportunity to comment upon the selection criteria to be used before any scoring exercise is undertaken. However, a failure to do so will not itself render the process unfair provided that the employer was clearly open during the consultation process to being persuaded that their choice of criteria is unfair or that there is an element of unfairness to the process proposed.
Practical tips
In reality, it is common practice for employers to consult with employees only once redundancy has been identified as the last remaining option and the pooling process has taken place.
This case highlights the need for consultation to be meaningful in the sense that employees have the opportunity to put forward submissions that will be genuinely considered and may still influence the outcome of the exercise. “Early” consultation does not need to be in the temporal sense, but can simply refer to a point in the exercise where other options can still be considered. Early consultation in this sense is therefore best practice.
Early workforce consultation may be a useful exercise for employers reluctant to make redundancies due to a desire to retain the workforce. Through general consultation, employees may agree to take a salary reduction instead of redundancies, or may put themselves forward for voluntary redundancies, avoiding the need to make redundancies altogether.
For employers undertaking a redundancy exercise, where there is no general workforce consultation, we suggest keeping a contemporaneous written record of other options explored with employees during individual consultation. It will be key to ensure that managers are trained effectively on how to carry out genuine meaningful consultation and that they are prepared to raise alternative options and properly consider and address any options raised by employees. Evidence of discussions of such type can be used in defence of any unfair dismissal claims arising from the redundancy process.
Employees should also be given their own scores during the consultation process and an opportunity to comment on them.
If an employer has any concerns in respect of the fairness of the redundancy process, these should be rectified on appeal where possible.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, November 2025
