It is best HR practice to consult every employee about their redundancy dismissal.
An employee's redundancy dismissal will be unfair - if the workforce will be reduced by 10% or more - and their employer did not follow the consultation requirements set out in sections 31(4) - (6) of the Employment Rights Act 2012 (ERA).
The Court of Appeal (at paragraph 40) stated that -
“As counsel for the Appellant (i.e. the BAMC) contended, correctly in our view, under section 31 of the Act, the employer is permitted the option to consult directly with the employee or his representative (subsection (6)), namely, the trade union recognised for the purpose of bargaining on behalf of that employee - (subsection 4(b)).”
Individual or Direct Consultation
Mr Wickham was a senior manager at the Barbados Agricultural Management Company Ltd (BAMC). The Court of Appeal ruled that the BAMC did not directly consult Mr Wickham about his redundancy dismissal for the purposes of section 31 of the ERA. Mr Wickham was not aware that he was being made redundant. Even though he was aware of the redundancies being made at the BAMC. And he was involved in the consultation process about those redundancies (e.g. he wrote a list of employees who were to be made redundant).
The Court of Appeal (at paragraph 57(a)) stated that -
"The consultation with the employee proposed for redundancy by section 31(4)(b) and (6) is consultation with that employee qua individual employee and not qua his position or office, such as supervisor, head of department or as chief executive officer, for examples."Consultation With a Recognised Trade Union
The BAMC argued that the Sugar Industry Staff Association (SISA) could undertake consultation on Mr Wickham’s behalf - even though he was not a member of the SISA. The Court of Appeal agreed and stated (at paragraph 57(c)) that -
“…subsection 31(4)(b) does not stipulate a relationship of membership between the union recognised by the employer for the purpose of bargaining and the affected employee. Rather, it demands a relationship of bargaining agency between the affected employee as a member of the bargaining unit for which the union is recognised as a bargaining agent by the employer.”
At the Tribunal hearing, the BAMC did not argue that there was a relationship of bargaining agency between Mr Wickham and the SISA (see paragraph 53). Hence, the Court of Appeal did not entertain the BAMC’s argument - about whether there was such a relationship - because the argument had not been raised at the Tribunal hearing. See paragraphs 57(c) - 60 of the case transcript.
Special Circumstances Defence
Under section 31(6)(c) of the ERA - an employer may argue that it was not “reasonably practicable” to consult its employees about their redundancies due to "special circumstances".
In the case of Cox-Jordan v World Gift Imports Ltd, the Tribunal ruled that the employer’s failure to consult its employees about their redundancies was not due to special circumstances: see paragraphs 32, 33, 40 – 43.
Also see the news item entitled Jobs Replaced by Technology and note section 40 of the ERA.