Redundancy: Can an "Insensitive" and "Perfunctory" Redundancy Consultation amount to unfair dismissal?

Monday, 5th December 2016

The EAT recently provided useful guidance and warnings to employers engaging in a redundancy consultation. In Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd, the EAT overturned the Tribunal's judgement that, despite the redundancy consultation being "insensitive and perfunctory", the dismissal was fair.

Facts

Mr Thomas was employed by BNP Paribas as a Director in the Property Management Division. He had worked for the bank since 1972, and was placed at risk of redundancy in January 2014. Mr Thomas was immediately put on special paid leave, and was told that he should not contact any clients or colleagues.

At a formal consultation meeting, Mr Thomas suggested an alternative director-level role in relation to a particular client account to avoid redundancy, but there was no role open on that account.

Following the meeting, a letter was sent to Mr Thomas which was addressed "Dear Paul", (his first name was Peter), which was characterised by the Tribunal as "insensitive". Additionally, BNP Paribas later sent Mr Thomas a letter of dismissal that referred to a inaccurate termination date which subsequently had to be corrected.

Mr Thomas appealed against the decision to dismiss him, arguing that the consultation process was a "sham with a predetermined outcome", and raised concerns about his age. His appeal was rejected, and Mr Thomas bought claims for unfair dismissal and age discrimination.

The Tribunal were satisfied that the consultation was reasonable, even though the Tribunal noted that it was insensitive for BNP Paribas to get Mr Thomas' name and termination date wrong.  The Tribunal commented: "for a valued employee with 41 years' service, the process was handled in a perfunctory manner with a lack of sensitivity, but we are satisfied that the consultation did fall within the range of reasonable responses". Mr Thomas appealed the Tribunal's decision.

EAT Decision

The EAT upheld Mr Thomas' appeal and found the Tribunal's decision "troubling". The EAT held that the Tribunal's finding that the consultation was highly "insensitive and perfunctory" could not, on the face of it, be reconciled with a finding that the consultation was reasonable and the dismissal fair. The EAT was particularly concerned with the fact that Mr Thomas was addressed by the wrong name after over 40 years' service, and was immediately put on special paid leave at the start of the consultation process, which isolated him from the business of his employer. The case was remitted to a different Tribunal to reconsider the issue.

Comments

This case demonstrates the importance of planning a redundancy process carefully, and of managing the process sensitively and with an eye to detail.

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