In Ashby v JJB Sports plc, the EAT has upheld the decision of an employment tribunal that the dismissal of a senior executive was fair despite the absence of consultation, because consultation would have been futile.

Mr Ashby had been employed for ten years by JJB Sports, most recently as Head of Human Resources and Payroll at Associate Director level. In 2010 a new CEO was brought into JJB at a time when it was in serious financial difficulties. He implemented a restructuring including the creation of four new executive director roles which were senior to Mr Ashby’s position. The HR Director role was filled by an external candidate without Mr Ashby knowing about the vacancy. It was also decided that Mr Ashby’s payroll and other administrative duties could be absorbed by existing staff. Mr Ashby was not told about these changes until a meeting in which he was also told that he was being made redundant. He subsequently brought a claim for unfair dismissal, arguing that his dismissal was unfair due to lack of consultation and consideration of alternative employment.

The EAT agreed with the employment tribunal’s decision that due to the extreme financial pressures experienced by JJB at the relevant time, this case fell into the narrow category of cases identified in Polkey v Dayton Services Ltd in respect of which consultation would have been futile. As regards the alternative vacancy, the tribunal had been entitled to conclude that the external candidate had qualifications which were ‘head and shoulders’ above Mr Ashby’s. The lack of consultation was understandable given the speed with which JJB had to act to try to save the business, and the highly sensitive nature of the commercial decisions being taken.

AIthough the employer was successful in the particular circumstances of this case, it should not be seen as a fundamental change to the basic rule that lack of consultation will almost invariably make a redundancy dismissal unfair.