In the case of Mr Joseph De Bank Hv ADP RPO UK Ltd Mr H worked for ADP, a subsidiary of a US company. He was one of a team of 16 people who recruited for one client, Goldman Sachs. When COVID-19 hit, demand for new staff fell sharply and at the end of May 2020, ADP decided to reduce headcount.

Its UK manager was given a scoring matrix from the US parent company to be used for selection purposes. Each employee was scored 1 to 4 on each of 17 entirely subjective criteria, Mr H coming last in the rankings.

ADP called Mr H to a meeting, and he was told there was a requirement for redundancies. A final meeting was held in July 2020 where Mr H was handed a letter of dismissal. He complained that the dismissal was procedurally unfair, with the criteria used being entirely subjective. He bought a claim of unfair dismissal.

The tribunal concluded that the appeal process was carried out conscientiously. The tribunal held that, despite knowing the identity of the others on the list, Mr H had not demonstrated to it that his score should have resulted in a higher ranking. Mr H appealed to the EAT arguing that, amongst other things, the tribunal had overlooked the need for consultation, and that the lack of consultation at a formative stage made his dismissal unfair.

The EAT examined all the relevant cases and noted that the nature of employment has changed radically since the 1980s when some of the leading cases were decided. The EAT held that there was a clear absence of consultation at the formative stage. There was never any opportunity to discuss the prospects of a different approach to any aspect of the redundancy process chosen by ADP.

The absence of meaningful consultation at a stage when employees have the potential to impact on the decision is indicative of an unfair process. There was no good reason for this consultation not to take place. As to the appeal, while this could correct any missing aspect of the individual consultation process, it could not repair the gap of consultation at the formative stage.