Thomas v BNP Paribas Real Estate

The Employment Appeal Tribunal (EAT) decided in this case that a 'perfunctory and insensitive' redundancy consultation is likely to make a redundancy dismissal unfair.

The Claimant had over 40 years' service, ending up as a Director of the Respondent's property management division. After a strategic review, the Claimant was put at risk of redundancy and immediately put on 'garden leave' and told not to contact clients or colleagues. The Respondent then made a number of procedural errors, including getting the Claimant's first name wrong in a letter. However, the employment tribunal found that the dismissal was fair.

The EAT quashed the decision, remitting the claim to a different employment tribunal. The EAT criticised the decision to put the Claimant on garden leave and to prohibit contact with colleagues during the consultation period. The EAT found it 'particularly troubling' that the employment tribunal had found the manner of consultation perfunctory and insensitive, yet considered that it was reasonable, without saying why. Such a process would not necessarily be unreasonable, and hence unfair, but one would expect to find some form of reasoning from the employment tribunal to explain why matters that gave rise to criticism of the process did not render the consultation unreasonable.

In Practice

This decision may surprise some employers as it is common practice to put employees at risk of redundancy on garden leave during the consultation process. Often this is for a good reason, namely to give the employee time to think about the situation away from the stresses and strains of work. The right thing to do is to talk to the employee and agree with them what they want. It may be they do want to remain in work during the consultation and, as long as they are not being disruptive, this will be the reasonable action to take in many cases.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.