Redundancy coming up - not sure if lawful

Redundancy law
Many redundancies are carried out incorrectly by management, to the point where they amount to unfair dismissal under the Employment Rights Act 1996. If you can identify the errors, then that will be the key to negotiating a better redundancy package.

It is supposed to be the role itself which is identified as being redundant first, and then the employee is identified afterwards, but all too often managers will select those people who, perhaps for personal reasons, they would like to see made redundant. In these ‘fake’ or ‘sham’ redundancies your employer may even build a seemingly objective redundancy selection process which just happens to select you, when the whole time it was a foregone conclusion.

As mentioned above, a lot of redundancy packages will take into account the element of doubt about the objectivity of the process, and will offer an enhanced amount, over and above the statutory minimum. Obviously the more your employer is offering you, the less useful it is to point out the holes in the process itself.

Is there a genuine redundancy situation?
In order for the redundancy to be fair, there has in fact to be a genuine redundancy situation. A redundancy situation occurs with the closure of a business, a workplace, or a whole department, or when there is a ‘diminished need for work of a particular kind.’

The latter is often broad enough to cover the situation where an employer restructures the business. For example, your employer might decide to merge two roles into one or divide the work amongst other staff. However, if you are dismissed for ‘redundancy’ and then your employer recruits someone to do the same job that you were doing, then that doesn’t look like a genuine redundancy situation (the exception being if that person is on significantly less money than you were, which is a legally acceptable reason to make you redundant).

An employment tribunal will not get involved with whether a decision to make redundancies was sensible, only whether it was genuine, and whether the selection process was objectively fair. You might think that the decision to make you redundant is really bad for the business and will result in lost revenues, but that is not the test for the employment tribunal unfortunately. Employment tribunals will not ‘put themselves in the shoes' of the employer for this.

Is the selection pool for the redundancy fair?
One of the ways that your employer can come unstuck in a redundancy dispute is in relation to who they decide is at risk of redundancy, in other words, choosing the ‘selection pool’ for redundancy.

If you have not been placed in a pool, then ask what the business reason for selecting you for redundancy is. If there are other people doing the same job as you then point out that they should also be in the redundancy selection pool with you.

It becomes more complicated when there are people who are not doing the same job but where the roles are interchangeable or the skill sets for the jobs are similar. In those circumstances you should be arguing that the selection pool should include those roles as well.

Obviously, the bigger the selection pool, the less likely it is that you will be selected for redundancy.

In addition, in some circumstances in a redundancy dispute, an employer should consider what’s commonly referred to as ‘bumping’. This means making a more junior employee employer redundant and you taking their job instead.

Were the selection criteria objective and fairly applied?
If there’s a number of people in the selection pool for redundancy, your employer has to set selection criteria for determining who should be made redundant. This could be things like attendance, punctuality, skills and experience.

Facts about attendance can be checked against HR records so are easily verified. Questions about skills and experience are more subjective and are often based on the opinion of the person scoring you. In those circumstances, your employer should be able to back up their scores, for example, by looking at past appraisals or peer reviews. If your employer has no basis for their scores, then your redundancy may be easier to prove to be unfair.

Sometimes employers will hold interviews to decide who will be made redundant. They are allowed to do this, but again they should be able to back up their interview scores objectively and the interview panel should be impartial and free from bias.

You should also consider whether your selection for redundancy is discriminatory. For example, if you have been absent from work due to maternity related sickness or due to a disability, and are scored down for attendance as a result, then the dismissal may be unfair and in breach of discrimination legislation.

Were you consulted about the redundancy?
If you are in a redundancy process with your employer then they do have to consult you about the proposals. They should meet with you to discuss the rationale behind the decision to put you at risk of redundancy and allow you to put forward alternatives. They should also consult with you about what other roles might be available to you in the business. The duty to consult with you is much more onerous if 20 or more people are at risk of redundancy.

For consultations with individual employees, there should be at least one meeting with the employer and they should give you written notice in advance of the meeting. They should also give you the chance to bring a colleague to accompany you. A colleague can ask questions, but can’t answer questions on your behalf. At the meeting they will have to say to you quite clearly that they are going to discuss your redundancy. It will be a serious meeting where you can have a long chat and you can raise any and all issues that you have.

If you are a member of a trade union you can take your union rep to the meeting. Normally trade union reps actually work for your employer, and they not trained lawyers either, so you may think that they are not always the best people to fight your corner in terms of negotiating you the highest reasonable amount for an exit package.

If you have some potential claims to bring against the employer, this meeting may be a good time to mention, on a ‘without prejudice’ basis, that you would consider entering into a settlement agreement.

Did your employer consider alternative work for you?
In a redundancy situation, your employer should consider alternative roles for you within the business or any group company. This should include for example sending you lists of all available vacancies. Often this will depend on the size and resources of the employer. It is important to note though that your employer does not have to create a role in the organisation for you where none exists.

You will be in a much better position to argue that your redundancy was unfair if you apply for lots of roles but are not successful, than if you do not apply for anything at all. It is also worth remembering that if you are offered an alternative role you are legally entitled to a four-week trial period, and if it doesn’t work out in that time you can still claim your redundancy pay.

Remember to appeal against your redundancy
If you are finally made redundant, then you should make sure that you appeal in writing against the decision, pointing out any defects with the procedure as set out above. This can be useful evidence if you do end up challenging the decision in an employment tribunal, and more importantly it gives you that additional firepower for a negotiation.