We have had to declare three redundancies in our sales team as we believe the decline in sales is structural and we need less sales people. Two of the sales people suggested a job share, which meant they both had to cover a very large area, which we agreed to. At our only consultation meeting in a hotel foyer, with another sales person her manager said “We could have another meeting, but what would be the point except to have a nice cup of tea and a chat if you don’t have any proposals.” Afterwards we wrote to say that “At the meeting you were unable to give any suggestions as you were unable to relocate to other areas of the UK […] we feel that we are now at the final stage of this consultation process.” We confirmed her redundancy verbally. She is claiming, through ACAS, others younger than her, were not treated the same (they were allowed to job share) so that constitutes age discrimination and that her redundancy is unfair, substantively and procedurally.

Peter replies:

One consultation meeting is almost certainly at least two consultation meetings too few. The fairness of consultation will however mainly be measured in qualitative rather than quantitative terms, and your failures appear to be largely the poor nature of the consultation.

At the meeting your manager wrongly insinuated that it was her responsibility to take the initiative to avoid redundancy. It is the employer’s responsibility to look for, and consider alternatives to redundancy or alternative work. They should listen to what the employee has to say, but that does not detract from their responsibility to manage the process properly and thoroughly. The follow up letter just compounded your failures. Employers should carry out a series of meaningful consultations with each individual affected, so that employees have the opportunity to challenge the selection and discuss alternatives to redundancy.

It is ultimately for the employer to decide whether redundancies should proceed as planned or not, but only after giving give proper consideration to all alternatives and having kept an open mind about all available options. Consultation in all of its forms must be active and not passive on the part of the employer and it will not be sufficient simply to be available for the employee to ask questions or supply ideas.

Meeting in hotels may make sense for remote workers but the least you should do is hire a private meeting room, so that the meeting can take place with a degree of privacy and confidentiality. It just looks cheap and uncaring not to do so and gives the message that they are not worth the expense.

Redundancy consultation should normally take a minimum of two weeks, involving at least three meetings:

  1. A meeting to inform the employee of the planned redundancy
  2. A further meeting to fully consider alternatives
  3. A final meeting to confirm the dismissal if nothing can be done to avoid it.

Further meetings should happen if there are challenges to the process or to further consider alternatives to redundancy.

Whether your actions constitute age discrimination, is more difficult to judge as she will need to establish there was less favourable treatment between her and her comparators, the other job sharing employees, but it certainly has a risk to it, not least because the Tribunal might conclude your poor approach was based on some sort of ageist preconceptions.

You should make the most of the ACAS Early Conciliation procedure to settle this using the ACAS Conciliator to reach a fair and watertight agreement called a COT3. It is not too late to get professional advice as it should help you reach a resolution more quickly and get the best possible deal.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.