So, quick, answer me this – when making redundancies outside the collective consultation rules, do you need to consult with the affected employees about the selection criteria relied upon or only as to the proposed impact of those criteria on that person?
Traditional wisdom would point to the latter. The selection criteria are a matter for the employer’s discretion in the light of its inside knowledge of what skills and attributes it will most need in its slimmed-down future form. So long as they are reasonable, relevant and capable of fairly objective assessment, it is not for the employee or indeed the Employment Tribunal to go behind them.
Then hold that thought and consider the necessary meaning and purpose of individual redundancy consultation, i.e. to provide an opportunity for the employee to influence decisions before they are taken. Consultation only after the event is clear pre-determination and therefore essentially fatal to the statutory fairness of the decision.
But what if the chosen criteria (which you don’t have to consult about) effectively make that decision (which you do) by themselves? Raise your hats, please, for the EAT’s new ruling in Mogane –v- Bradford Teaching Hospitals NHS Foundation Trust, which suggests in fairly robust terms that this necessarily brings in the selection criteria as a proper topic of consultation prior to the dismissal, thereby seemingly putting a coach-and-four through the long-accepted principle that they...
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