The Claimant was made redundant after scoring the lowest result in comparison to colleagues. He appealed against the dismissal, asserting his belief that he had been scored too low. He complained that the dismissal was procedurally unfair, with the criteria used being entirely subjective. He complained he had not been given information about the scores in order to challenge the scoring. An appeal meeting was held. Although the Claimant did have his scores by the time of the appeal meeting, the Claimant was never shown the comparative scores of his colleagues. The ET accepted that the Claimant knew nothing about his scores until after dismissal but concluded that the appeal process was carried out conscientiously and that the Claimant’s criticisms of both the selection criteria and the pool chosen by the Respondent were not borne out. The Claimant's claim of unfair dismissal was therefore dismissed and he appealed on the basis that there had been a failure to consult properly and the ET had not considered the consultation issue adequately or at all.

The EAT allowed the appeal. The ET had overlooked aspects of the issue of consultation in its deliberations. It is for the ET to conclude whether the decision to dismiss for redundancy is reasonable within the meaning of Section 98(4) ERA 1996. However, in doing so an ET has available to it guidance as to general principles provided in various appellate decisions. The ET is entitled to depart from that guidance where a decision to dismiss is reasonable but should, in those circumstances, provide its explanation as to why the decision was reasonable despite the general principles. An important general principle is that consultation in a redundancy situation should take place at a formative stage where an employee or representative is given adequate information and time to respond and where genuine consideration is given to the response. In this case consultation took place much later than the formative stage and the ET erred in concluding that the consultation was reasonable in the absence of an explanation why the general approach did not apply. The appeal did not correct the failure to meaningfully consult at the formative stage and the dismissal was unfair.