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Garden leave during redundancy may make dismissal unfair

Paula Bailey

In Thomas v BNP Paribas Real Estate, the EAT allowed an employee’s appeal against a tribunal’s finding that his dismissal was fair, notwithstanding that the tribunal had considered that the redundancy consultation process was “insensitive” and “perfunctory” especially as the employee was placed on garden leave at the start of the process. Paula Bailey, Employment Law expert with Howes Percival comments.

In this case, there was no real explanation as to why it was considered that gardening leave was deemed necessary for such a long-serving employee and at a time when the consultation process had just started.” Employers will want to consider whether it is reasonable to place an employee who is “at risk” of redundancy on garden leave with severe restrictions as to what he/she can and cannot do at the commencement of redundancy consultation. Whilst this may be appropriate in some instances, clearly how it is handled needs to be thought about carefully and it needs to be handled in a sensitive way.

The employee (who had long service – he had 41 years’ service) had been informed that he was at risk of redundancy and on the same day immediately placed on garden leave and told not to contact customers or employees and his access to company systems was suspended. He was then written to and the employer used an incorrect name when addressing him (the letter was addressed “Dear Paul” when his name was Peter).

The EAT considered that the tribunal had failed to provide reasons why they considered the consultation to be reasonable given their considerable criticisms of the way the consultation was handled and as such it was not clear how they had, notwithstanding these heavy criticisms, still found the dismissal to be fair. The matter was remitted to another tribunal to consider the claim.

Quoted in the Appeal Judgment, was the Judge’s comment at the sift stage of the appeal, where His Honour Judge David Richardson said: “Speaking for myself, I find it surprising that an employer should find it necessary, if it is really at the beginning of a genuine consultation process which it has just started “at a formative stage”, to put a long serving employee on gardening leave with no work, no contact with clients and no contact with fellow employees even before the consultation process has started.” This does not mean that ultimately this employee will be held to be unfairly dismissed as a result of an unreasonable consultation. That is because a fresh tribunal will now be asked to consider the claim.

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