Scoring you before consultation starts isn’t automatically unfair, but it’s a warning sign
“Court of Appeal: no collective duty below 20, and scoring before consultationA process your employer is required to carry out before making significant decisions that affect you, most commonly redundancy. It must be genuine, meaning your employer must listen and consider what ... didn't automatically make it unfair.”
Below the 20-person collective consultationCollective consultation is the legal process an employer must follow with employee representatives when proposing to make 20 or more people redundant at one establishment within 90 days. It is separat... threshold, fair individual consultation is what the law requires, and pre-completed scoring alone doesn't defeat it if your employer stayed genuinely open to challenging it.
- Don't assume a redundancy process is automatically unfair just because scoring or a shortlist existed before you were consulted.
- Focus any challenge on specific points you raised that your employer refused to engage with, not just the timing of the process.
- If you're in a redundancy round of fewer than 20 people, you're not entitled to the wider collective consultation process, only fair individual consultation about your own situation.
The situation
A recruitment consultant worked as one of 16 people on a team that recruited for a single client. When that client cut its hiring needs by half, the employer decided the team needed to shrink and scored all 16 people against a set of selection criteria.
The employee was told in advance that a scoring matrix would be used and was shown an example of it. What he wasn't told, before consultation started, was that the scoring had already happened, or what his own score was. He ended up with the lowest score and was made redundant.
What the court found
The Court of Appeal sided with the employer on two points that matter well beyond this one case.
First, there's no general legal duty on an employer to consult the wider workforce about a redundancyA dismissal that occurs when your employer no longer needs the work you do, either because the business is closing, a workplace is closing, or the requirement for employees to carry out that kind of w... situation affecting fewer than 20 people. Below that threshold, the law only requires fair, individual consultation with the people actually at risk, not the broader collective process that applies to bigger redundancy rounds.
Second, completing selection scoring before consultation begins is poor practice, but it doesn't automatically make the process unfair. What matters is whether the employer's mind stayed genuinely open. If it would have reconsidered a score or a criterion in response to a real challenge during consultation, the fact that scoring came first isn't fatal on its own.
For the wider legal framework around collective consultation duties, see our guide on collective redundancy consultation. Compare this with a case where consultation genuinely was just for show.
De Bank Haycocks v ADP RPO UK Ltd. [2024] EWCA Civ 1291. Court of Appeal. 2024.