UK Redundancy Process Found Unfair Due to Lack of Early Consultation: Lessons for Employers in Barbados and Beyond

Case Summary: De Bank Haycocks v ADP RPO UK Ltd (Employment Appeal Tribunal)

This UK case offers an important lesson for HR professionals and business owners—both in the UK and jurisdictions like Barbados—about the legal requirements surrounding redundancy. Specifically, it highlights the critical importance of consulting employees at an early or formative stage, before any final decisions are made.

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Facts of the Case

Mr. De Bank Haycocks was a recruitment consultant employed by ADP in the UK, working in a team of 16 for a single client. When the client's demand for recruitment services dropped due to the COVID-19 pandemic in March 2020, ADP decided by May 2020 that redundancies were necessary.

Following a directive from its US parent company, ADP assessed all 16 employees against subjective selection criteria. Mr. De Bank Haycocks received the lowest score.

On 30 June 2020, he was invited to a consultation meeting where he was informed of the need for redundancies. A second meeting followed on 8 July and a final one on 14 July, when he was officially dismissed. Notably, he was never shown his selection scores before his dismissal.

Although he received his scores during the appeal process, he was not shown how his scores compared to his colleagues’. His appeal was unsuccessful, and he filed a claim for unfair dismissal.

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Employment Tribunal and Appeal

The original Employment Tribunal found the dismissal to be fair, viewing the appeal process as having corrected the procedural failure of not providing Mr. De Bank Haycocks with his scores prior to dismissal.

However, on appeal to the Employment Appeal Tribunal (EAT), that ruling was overturned. The EAT held that the dismissal was unfair for the following reasons:

• There was no meaningful consultation at the formative stage—that is, before the decision to proceed with redundancies had been effectively made.

• Employees were denied an opportunity to influence the outcome, such as proposing alternatives to redundancy.

• The appeal process, though well-executed, could not correct the earlier fundamental flaw—the lack of early consultation.

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Guiding Principles for Employers

The EAT outlined key legal principles which are broadly applicable across jurisdictions:

1. Consultation must occur when redundancies are first contemplated, not after decisions have been made.

2. Employees must be given adequate time and information to respond, and their input must be seriously considered.

3. A fair redundancy process aims to avoid dismissals or reduce their impact, not just execute them efficiently.

4. While an appeal can remedy procedural flaws (e.g., not sharing scores), it cannot fix fundamental issues like failing to consult early enough.

5. Scoring systems must be used transparently and fairly; using subjective tools provided by overseas parent companies is not a valid excuse under UK law.

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Why This Matters for Employers in Barbados

The UK’s Employment Rights Act 1996, which underpins the EAT’s decision, has many similarities to the Barbados Employment Rights Act, 2012. In both jurisdictions:

• Dismissals must be procedurally fair and substantively justified.

• Employers are expected to act reasonably and to follow a fair process before dismissing any employee, especially on the grounds of redundancy.

• Redundancy must be a last resort, not a foregone conclusion.

• Employees should be involved in good faith consultation, particularly where there is no recognised trade union.

In Barbados, the Employment Rights Act mandates formal consultation whenever redundancies will affect 10% or more of the workforce. Employers who fail to engage in the required consultation process when downsizing by this threshold risk having those dismissals deemed unfair under the ERA.

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Global Parent Companies and Local Law

The EAT emphasized that UK employers cannot hide behind global corporate policies. If your business in Barbados is part of a multinational group, local employment law and best practices still apply. Decisions made overseas must be reviewed in light of Barbadian employment law and industrial relations practices.

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Lessons and Takeaways

1. Start consultation early. Do not wait until redundancy decisions are final. Employees must have a chance to contribute meaningfully.

2. Be transparent. Share selection criteria and scores with employees early and explain how they were applied.

3. Don't overlook individual consultation, even where collective consultation isn’t required.

4. International directives must be adapted to local laws.

5. Appeals can fix procedural errors—but not strategic ones.

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And a Word of Caution (UK-Specific but Worth Knowing)

UK employers are reminded of the legal obligation to notify the Secretary of State (using form HR1) if 20 or more employees are being made redundant within 90 days. Failure to do so can result in criminal prosecution and unlimited fines for both the business and its directors.

In accordance with the Employment Rights Act, 2012, where an employer in Barbados proposes to terminate the employment of 10% or more of the workforce, the employer is required to:

1. Commence consultation with the affected employees or their recognized trade union (if one exists) at least six (6) weeks prior to the proposed date of the redundancies;

2. Provide a written statement to the employees or recognized trade union and to the Chief Labour Officer, setting out:

    • The reasons for the proposed dismissals, and

    • Any other relevant particulars relating to the proposed redundancies;

3. Ensure that both the consultation process and the written notifications are completed in a timely manner, no later than six weeks before the intended date of termination.

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Conclusion: Early Consultation is Not Optional

Whether you’re a UK employer or a Barbadian SME owner, early, meaningful consultation is a legal necessity and a business imperative. It’s more than a formality—it’s a chance to find alternatives, build trust, and potentially save jobs.

If you're planning a redundancy exercise, ensure your process is legally sound, transparent, and employee-focused—from the start.