23 November 2012 #Employment
As a general rule a redundancy dismissal will be unfair if the employer has not undertaken a consultation with the employee prior to the dismissal. However, in exceptional circumstances, an employer may be able to dismiss fairly in these circumstances if it can show that the consultation exercise would have been futile.
This defence has recently been accepted by the EAT (Ashby v JJB Sports plc UKEAT/0114/12) when it held that an employer who dismissed a senior HR employee on the grounds of redundancy without consultation did so fairly even though there was an alternative position which the employee could have been invited to apply for during consultation.
In coming to the conclusion that consultation would be futile, the EAT said that it had to consider whether in the circumstances known to the respondent it was reasonable not to consult. It considered, amongst other things, the employer’s need to act with ‘speed and alacrity’ to save the business from administration and the fact that the alternative position had been filled by someone whose expertise were ‘head and shoulders’ above the employee’s, so much so that it would have been a sham to allow the employee to apply for the position.
Whilst this defence has been recognised since 1987, there has been relatively little case law around its application, making it difficult to clearly identify when it should be relied upon. The EAT, in the present case, said that the facts of the case were far from ordinary as it involved a very senior post and a substantial re-organisation, yet one could argue that such factors are common to redundancy situations and as such the present case does little to clarify the circumstances under which the defence will be successfully applied.