The EAT has confirmed that the dismissal of an associate director at JJB Sports was fair despite the absence of any consultation or warning over the appointment of his replacement. Given that that overall standard is that of a reasonable employer, it has always been clear that such a decision is theoretically possible, but since the famous Polkey decision 25 years ago examples of fair but consultation-free dismissals have been thin on the ground.

While the EAT said that a tribunal does not need to label the circumstances it takes into account as exceptional before finding this kind of dismissal fair, it added that “this was, in truth, a case far from the ordinary case of redundancy selection”. The employer was on the brink of administration when it made the decision to restructure its senior management team. The claimant had risen through the ranks to head of payroll and HR, but without any formal HR qualifications. His replacement had extensive HR qualifications and was to sit on a new operating board. In these circumstances the employment tribunal decided that the JJB had not acted unreasonably in proceeding with the re-structuring without consulting with the claimant or giving him the opportunity to apply for the new post, a decision which was endorsed by the EAT.

It is possible that the outcome would have been different if the claimant had focused on the employer’s failure to consult him about other alternative positions, rather than on the injustice of not giving him a chance to compete for the top job. In any case the employer would presumably have been advised that proceeding in the way it did would result in a high risk of an unfair dismissal claim. The decision could have gone either way, and it would be a mistake to see it as a green light for failing to consult in a business re-organisation, even if the employer believes that the employees at risk of redundancy would have little chance of being selected for a post in the new structure.