Thomas v BNP Paribas – garden leave and perfunctory redundancy consultation for longstanding employee was unfair

In the case of Thomas v BNP Paribas Real Estate Advisory & Property Management UK Ltd  UKEAT/0134/16/JOJ the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal had erred in finding that a “perfunctory” and “insensitive” redundancy process had not resulted in an unfair dismissal.

Mr Thomas commenced employment for BNP Paribas Real Estate Advisory and Property Management Ltd (“BNP”) in 1972 and by 2004 was employed as a Director in the Property Management Division.

In 2013 BNP engaged Paul Abrey as Head of Property Management. Mr Abrey decided that a strategic review of the business should be untertaken and the outcome of that review was that a number of divisions, including Mr Thomas’s division, should be restructured as there were more Director and Senior Director roles than the nature of the work and volume of work required. This meant that a number of persons were identified as being at risk of redundancy, including Mr Thomas and six others. Mr Thomas was informed on 6 January 2014 that his role may be made redundant and that there would be a ‘pool of one’. He was immediately put on paid garden leave and told not to contact clients or colleagues.

On 7 January 2014 there was a redundancy consultation meeting, attended by Mr Thomas. In this meeting Mr Thomas was told that he would continue to be on garden leave, that the redundancy process would continue, and that he should not contact colleagues or clients. Mr Thomas suggested that his Director-level role could continue if he was given a specific client account but it was determined that this client account was already being handled by a colleague.

On 8 January 2014 Mr Thomas was sent a letter confirming what had occurred on 7 January 2014. This letter was headed “Dear Paul” whereas Mr Thomas’ first name is “Peter”. Mr Thomas was hurt by this. Mr Thomas was sent a list of vacancies and in January 2014 there was a back-and-forth regarding the availability and suitability of certain roles. This came to nothing.

On 13 February 2014 the final consultation meeting took place and Mr Thomas was told that there was no alternative to making his position redundant. On 14 February 2014 a letter of dismissal was sent, with this letter inaccurately referring to a termination date of 6 May 2014 (it should have been 13 May 2014).

Mr Thomas appealed against the decision to make him redundant, raising a number of issues including challenging the outcome of the  strategic review, arguing that the redundancy process was a ‘sham’ and that it was predetermined, and raising concerns that he had been discriminated against because of his age. Mr Thomas was unsuccessful with his appeal and made claims to the Employment Tribunal for unfair dismissal, age discrimination, and disability discrimination.

The Employment Tribunal found that there was a genuine redundancy situation and that Mr Thomas was dismissed for the reason of redundancy. It found that getting Mr Thomas’ name wrong in the letter of 6 January 2014 and putting the incorrect termination date was “insensitive”, and that the redundancy process was “perfunctory”, but held that the consultation did fall with the range of reasonable responses. The Employment Tribunal also found that Mr Thomas’ dismissal was not predetermined and a sham, holding that there was no evidence to this effect. The Employment Tribunal therefore dismissed all of Mr Thomas’ claims, including his claim for unfair dismissal.

Mr Thomas appealed against the decision of the Employment Tribunal with regards to its decision to reject his unfair dismissal and age discrimination claims, arguing with regards to the unfair dismissal claim that the Tribunal had misapplied the law and had come to the wrong conclusion on whether the consultation was unfair.

The Employment Appeal Tribunal dismissed Mr Thomas’ appeal against the Tribunal’s decision on age discrimination but upheld his appeal on the unfair dismissal points. The EAT found that the fact that the Tribunal had described the consultation process as “insensitive” and perfunctory” suggested a lack of fairness in the consultation process and, further, that the fact that Mr Thomas was placed on garden leave at the beginning of the redundancy process as suggestive of a predetermined outcome.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case indicates that employers should, when undertaking redundancy exercises, be extremely careful to ensure that the process is undertaken in a measured and sensitive manner, and that steps should not be taken which may suggest that the outcome of the redundancy process is predetermined (such as, for example, placing the employee on garden leave at the beginning of the consultation exercise).”