A large part of the redundancy process is the need to provide employees with certain information and consult with them about prospective redundancies.  The need to consult is key, and in cases of large-scale redundancies (more than 20 redundancies being made within a period of 90 days or less) the law prescribes that collective consultation must take place for at least 30 (if between 20 and 99 employees are affected) or 45 days (if more than 100 employees are affected).  In cases where fewer than 20 employees are affected, there is no prescribed time limit but the shorter the consultation period, the more likely it is that the consultation will be considered improper or unfair.

The aim of consultation is primarily to avoid redundancies and allow the employees to propose alternatives, challenge their scores on any scoring matrix, and consider alternative roles.  However in some cases, employers might see no benefit in consulting and think it would be better to do without it.

In the case of Polkey v A E Dayton Services Ltd [1987] the House of Lords (as it was then) commented that in some “exceptional cases” where consultation would be futile, the employer could dispense with it altogether. 

However, I would pose a strong word of warning for employers seeking to rely on the “exceptional cases” defence.  Firstly, there is no guidance on what would constitute an “exceptional case” and very few cases where that argument has succeeded. The description in the Polkey case was that consultation would need to be “utterly useless” and the tribunals are likely to scrutinise decisions to dispense with consultation very closely.  It is therefore extremely risky to try and rely on that argument in a tribunal.

If you are in a position where redundancies seem unavoidable (and you do not fall within the collective consultation rules), it would be far better to either:

1. Enter into a short period of consultation (there are some cases where even a 7 day period was adequate); or

2. Offer an enhanced package under the terms of a settlement agreement which can circumvent the need for a prolonged period of consultation.

In either case, I would strongly suggest seeking specialist advice before undertaking redundancy consultations, and in particularly in cases where you are trying to circumvent or avoid the consultation process as such decisions will need to be carefully considered on a case-by-case basis.

For assistance with redundancy matters or any other employment matter, contact Arvin Sandhu by email or on 01494 521 301.