The EAT's recent judgment in the case of Thomas v BNP Paribas provides some useful pointers and warnings for employers engaging in a redundancy consultation, particularly the importance of handling the process with sensitivity.
The case involved a senior employee at BNP Paribas, Mr Thomas, who had worked at the bank for more than 40 years before being placed at risk of redundancy. He was immediately placed on paid leave and told that he should not contact clients or colleagues.
The bank's handling of the consultation process was criticised by the original Tribunal as perfunctory and insensitive (there were procedural errors and basic mistakes made such as getting Mr Thomas' name wrong in a letter) and yet at first instance the consultation process was held to be reasonable. This reasoning did not find favour at the EAT: it highlighted the particularly insensitive approach of placing Mr Thomas on immediate garden leave and prohibiting contact with colleagues and clients, and that the Tribunal should have explained how it could conclude that the process was reasonable. The EAT did not say that that this criticism of the employer meant that the Tribunal could only have found it to be unreasonable but that a finding of reasonableness needed to be fully explained and this had not been done by the Tribunal. The original finding against Mr Thomas's unfair dismissal claim has been quashed, with the EAT remitting the case to a newly constituted Tribunal to consider the claim afresh.
The substantive law of redundancy, for example the grounds on which a redundancy can be justified and the importance of the employer undertaking appropriate consultation, is well-established. So what lessons can employers draw from this case? Clearly there are a number of competing and difficult issues to address during a redundancy process, for example access to confidential information and communications with clients. This case, however, does underline the importance of how a redundancy consultation is carried out: employers need to operate with sensitivity to ensure the process is fair and reasonable. For example, is it really necessary to prohibit contact with colleagues during a period of consultation? Even seemingly minor details or basic things like ensuring letters are addressed correctly, particularly in a case like this where the employee had worked there for so long, are crucial to get right and underline the importance of structuring the process appropriately from the start.