In Ashby v JJB Sports plc the EAT held that the dismissal of a senior HR/payroll manager for redundancy was fair, even though there had been no consultation. The circumstances fell into the exceptional category of cases, identified in Polkey v AE Dayton Services Ltd, where consultation would have been futile. Ashby’s skills and capabilities had been properly assessed and the employer was entitled to reach the conclusion that he would not be a suitable candidate for the newly created HR director role. In those circumstances any further discussion was not necessary, as it would have served no purpose, and given the urgent need for the employer to turn the business around from potential insolvency, it was reasonable to dismiss Ashby without consultation and not inviting him to compete for the alternative position of HR director.

Comment: This case should not be seen as a ‘green light’ to dispense with consulting with potentially redundant employees. The Polkey case made it clear that an employer will not normally act reasonably unless he warns and consults any employees affected, unless in the light of exceptional circumstances, consultation or warning would be utterly useless. Here, the EAT accepted that the claimant’s unsuitability for the alternative role and the urgency to turn the business around from potential insolvency, was a situation which rendered consultation useless, but such cases will be the exception rather than the rule.