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
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
An incorrect termination date was used in the dismissal
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.
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
Thomas v BNP Paribas Real Estate Advisory and Property
Management UK Ltd (UKEAT/0134/16).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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