The Employment Appeal Tribunal (EAT) has overturned a tribunal’s conclusion that a dismissal was fair following a “perfunctory and insensitive” redundancy consultation.

Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd, EAT

Facts

The claimant, Mr Thomas, was first employment by the respondent (BNP Paribas) in 1972. In 2004 he was appointed Director in the Property Management Division.

Following a strategic review, a number of employees were identified as being at risk of redundancy, including Mr Thomas. BNP Paribas decided that he should be in a pool of one rather than a selection pool. Mr Thomas was called into a meeting on 6 January 2014 when he was informed that he was at risk of redundancy. He was immediately put on paid leave and told that he should not contact clients or colleagues.

A formal consultation meeting was held with Mr Thomas the following day, 7 January. He was informed that he was entering a period of consultation, during which alternatives to redundancy would be considered. Mr Thomas raised the possibility of an alternative role working on a particular client account, but this role had already been filled.

A letter sent to Mr Thomas the following day addressed him by the wrong name, which was subsequently criticised by the tribunal as ‘insensitive’. The final consultation meeting took place on 13 February, at which he was informed that there was no alternative to redundancy. His appeal against the decision to dismiss him was rejected.

Mr Thomas brought tribunal claims for unfair dismissal and age discrimination, claiming that the consultation process was a sham and that the motive for his dismissal was his age (59). The tribunal held that the dismissal was genuinely by reason of redundancy and followed a consultation that fell within the range of reasonable responses, even though the process had been handled in a perfunctory manner with a lack of sensitivity. It rejected Mr Thomas’ claim for age discrimination.

EAT decision

The EAT upheld Mr Thomas’ appeal against the finding that his dismissal was fair, describing the tribunal’s decision as ‘troubling’. The tribunal had been highly critical of the respondent’s consultation process, describing it as perfunctory and insensitive, particularly given the claimant’s 41 years of service. There was insufficient reasoning for why it then went on to find the consultation and the decision to dismiss as being within the range of reasonable responses. The case was remitted to be reheard by a different tribunal.

Consequences

The decision is a reminder that the obligation to consult in a redundancy situation applies when the proposals are still at a formative stage and not when a decision to dismiss has already been made. The fact that this employee was immediately suspended from work (he was allegedly escorted from the building) and permitted no contact with clients or colleagues after 41 years of service, did not assist the employer in trying to persuade the tribunal that the consultation process was fair.