In Ashby v JJB Sports, the Employment Appeals Tribunal held that the dismissal of a senior employee by reason of redundancy was fair, notwithstanding the absence of any consultation.

At the time of his redundancy, Mr Ashby was an Associate Director of JJB sports and Head of Human Resources and Payroll. A new CEO was brought in who created a new role of HR Director. A significantly more highly qualified person was hired into that role and Mr Ashby, who was not aware of the re-structuring of the company, was then made redundant without any form of consultation.

The tribunal decided, and the EAT subsequently agreed, that the dismissal fell within the limited number of situations where consultation would have been futile. The EAT held that this was far from an ordinary case of redundancy, in light of the company’s need to implement a radical and urgent re-organisation to protect itself from insolvency. It was deemed reasonable not to involve Mr Ashby in 'highly sensitive commercial decisions' and the company’s decision not to appoint him to the role of HR Director was held not to be unfair, particularly as it was clear that the other candidate possessed superior experience and skills.

The EAT stressed that this case was unusual but, even so, it should be treated with enormous caution, perhaps verging on suspicion. It is difficult to see why the EAT came to the decision it did, particularly with regard to its conclusion that the circumstances of this particular case can be described as ‘exceptional’ simply because they involved a senior employee and a substantial re-organisation of the business.

The 'futile' exception identified in Polkey is rarely successfully argued and employers would be wise not lightly to assume it can be relied upon. For the time being at least, and notwithstanding this case, consultation remains a fundamental feature of a fair redundancy process.