Unfair Dismissal: Redundancy consultation method can make dismissal unfair

In Thomas v BNP Paribas Real Estate [2016] UKEAT/0134/16/JOJ, the EAT considered the way in which the tribunal had reviewed a redundancy consultation to find it “perfunctory and insensitive” but at the same time considering it reasonable without providing reasons for its decision. The EAT quashed the tribunal’s decision and remitted the claim to another tribunal to be reheard.

After working for over 40 years at BNP Paribas and rising to the position of Director, Mr Thomas was immediately put on garden leave and told not to contact clients or colleagues whilst a consultation was carried out, following a strategic review by his employer which put him at risk of redundancy. Mr Thomas was 59 at the time, and a number of other ‘at risk’ employees were of similar ages. The tribunal however, supported by the EAT, dismissed any suggestion of age discrimination. The tribunal recognised that the employer had made procedural errors, such as addressing a letter to Paul instead of Peter, which it found particularly insensitive but concluded that the consultation had been among the band of reasonable responses.

The EAT judge on the other hand, considered this finding to be “troubling”. In supporting the appeal, Mr Justice Wilkie considered the way the tribunal dealt with the question of reasonableness showed that it had failed to tackle the consequences of its finding that the consultation process had been “perfunctory and insensitive”, albeit that such a finding does not of itself mean the process was not reasonable. He went on to criticise the tribunal for not explaining why, when it was so critical of the employer’s actions, these actions did not render the consultation unreasonable, and felt that the tribunal had therefore “failed to appreciate or address the potential consequences of its findings”.

Published: 20 December 2016

Article Sections: Ending employment | Redundancy

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