Unfair dismissal: gardening leave and small mistakes undermine fair procedure

Published 7 December 2016

In this case, the EAT considered an appeal against a finding that a redundancy dismissal was fair although the process had been "perfunctory" and "insensitive".

The facts

Mr Thomas had been employed for over forty years when his employer, BNP Paribas Real Estate Advisory and Property Management UK Ltd (BNP Paribas) undertook a strategic review, which identified a number of employees as being at risk of redundancy. He was called into a brief meeting where he was told the results of the strategic review, put on paid leave, and told that he should not contact clients or colleagues. The next day, he attended a consultation meeting, at which his employer read from a crib sheet, including the words, "…from today, the Company will cease to provide you with work, and accordingly you should not access the Company's premises…or contact any clients, customers, suppliers or employees…with immediate effect you will not have any access to company systems or email…." .

Following this meeting, BNP Paribas wrote to Mr Thomas. The EAT commented that the letter, "no doubt particularly hurtfully, was addressed to, "Dear Paul", whereas his name is Peter." After further consultation, a letter of dismissal was sent out, referring to the wrong termination date.

Mr Thomas' internal appeal was unsuccessful, and he issued claims for unfair dismissal and age discrimination. This alert does not cover the age discrimination element of his claim.

Holding that the dismissal was fair, the employment tribunal commented that, "…it was insensitive for the Respondent to get Mr Thomas' name wrong and to insist that the consultation ended on 6 February when in fact it ended on 13 February, but that does not make the consultation unreasonable. For a valued employee with 41 years' service, the process was handled in a perfunctory manner with a lack of sensitivity, but we are satisfied that the consultation fell within the range of reasonable responses." The tribunal did not explain why it found the consultation to be reasonable.

Mr Thomas appealed.

At the sift stage of the appeal (which is the stage where the EAT decides whether there is any reasonable ground for bringing an appeal) an EAT judge commented that, "…I find it surprising that an employer should find it necessary, if it is really at the beginning of a genuine consultation process…to put a long standing employee on gardening leave with no work, no contact with clients and no contact with fellow employees even before the consultation process has started."

In its judgment, the EAT referred to this as a "troubling decision" of the employment tribunal, and referred to the decision to send Mr Thomas on gardening leave and prohibiting contact with colleagues or clients as a "particularly insensitive approach".

The EAT held that the tribunal had failed to grapple with the consequences of the "perfunctory" and "insensitive" procedure, and that the tribunal should have given some form of reasoning to explain why the matters giving rise to the criticism and the insensitivity of the gardening leave did not render the dismissal unfair.

The case was remitted to a fresh tribunal to consider the unfair dismissal claim.

What does this mean for employers?

It is not uncommon for employers to deal with redundancy situations quickly and put employees on garden leave straight away to avoid disruption and to protect client relationships, the stability of the workforce and confidential information. This case demonstrates that this approach may be successfully challenged. The EAT said that, "A consultation process that is described in those terms is not necessarily unreasonable, but one would expect to find…some form of reasoning to explain why the matters that give rise to this stern criticism and the further insensitivity of gardening leave and so on, were not such as to render the consultation unreasonable".

As well as being a litigation risk, it is, practically, difficult to bring employees back into work once they have been put on garden leave for redundancy consultation. Employers should assess, on a case by case basis, whether it is necessary to put the employee on gardening leave from the beginning of consultation, and (where they decide it is) need to be able to explain their reasons for this.

Mr P Thomas v BNP Paribas 2016 UKEAT0134160310