Would you place employees on garden leave as part of a redundancy consultation process? This could affect the fairness of the redundancy

08 / 12 / 2016

In a recent case the Employment Appeals Tribunal (EAT) has found that a “perfunctory and insensitive” redundancy consultation process can impact on the ultimate fairness of a redundancy dismissal.

In its judgment, the EAT highlighted the following particulars of the redundancy process that were considered when assessing the reasonableness of the consultation:

  • The Claimant was placed on garden leave at the start of the consultation process and contact with clients and colleagues was prohibited. The EAT described this as a “particularly insensitive approach” to consultation as it isolates the employee from the workplace and may hinder, at least initially, his or her ability to engage with the consultation process by proposing alternatives to redundancy.
  • The Claimant was addressed by the wrong name during the consultation process, which the EAT described as “particularly hurtful”. The Claimant had been with the business for over 40 years.
  • An incorrect termination date was used in the dismissal letter.

The EAT accepted that a consultation process described as “perfunctory and insensitive” for these reasons would not necessarily be unreasonable, but concluded that in this particular case the Employment Tribunal had failed to provide sufficient explanation as to why the matters which gave rise to its criticisms did not make the consultation unreasonable.

Comment

This case highlights the importance of handling the redundancy consultation process carefully and sensitively, particularly in relation to long-serving employees.

Employers should be aware that placing an employee on garden leave too early in the consultation process could give rise to allegations that the redundancy was predetermined, and thus unfair. Whilst it may be an appropriate course of action in some cases (for example, if an employee threatens to work for a competitor), it should not be the employer’s default response in a redundancy situation. Instead, an employer needs to be able to justify why it is necessary and reasonable to take such action in each particular case.

Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd (UKEAT/0134/16).