Challenging the Redundancy Process! Guidance for those who face losing their Job!

The Basics

You have the right to make a claim for unfair dismissal in the employment tribunal if you have at least 2 years’ continuous employment with your employer and are then dismissed.   You also have the right not to be discriminated against because of certain ‘protected characteristics’ (which include sex, race, disability, sexual orientation, religion or belief, age, pregnancy and maternity).  Discrimination claims do not require any qualifying period of service. 

Set out below are 7 helpful ways to challenge the redundancy process.

1.     Is your job redundant?

The definition of redundancy is an employer’s reduced need for employees to carry out work of a particular kind.    Think about what the particular kind of work it is that you do and what rationale your employer has given you for why your position is at risk of redundancy.    You may be able to argue that you do not do the kind of work they are looking to reduce and therefore, that your job is not redundant as a matter of law.  Plus, if workload is expected to pick up in the near future, that could be a relevant factor to challenging the redundancy process. 

2.     Genuine and meaningful consultation?

The next question is whether a fair process is being followed, which would include the following:

·       Warning and consultation about the proposed redundancy;

·       Adopting a fair basis on which to select for redundancy; and

·       Considering suitable alternative employment. 

You should attend any consultation meeting with as many creative ideas as possible about your selection for redundancy and ways of avoiding your redundancy and monitor your employer’s reaction to them.

There is no legal timeframe for the consultation (unlike with collective consultation, see below) but the shorter it is, the more likely you could argue that it was insufficient.   We would usually suggest that at least 2 weeks would be necessary.      

3.     Predetermination

To consult properly, an employer must have an open mind and still be capable of influence about the matters it is consulting on.    Please keep your eye open for any evidence or language being used which would suggest that your redundancy is predetermined, which can be used to support an unfair dismissal claim.

4.     Pool for selection

Fair selection involves the fair application of objective selection criteria to a pool of employees which has been fairly defined.  You may be able to challenge the pool of employees in which you are placed for selection.    If your role is a standalone, unique role then the pool may be just you and there is no need for selection criteria to be applied.  Otherwise, you should be pooled with employees who carry out the same or a similar role to you, or who have the same or similar skills.

5.     Selection process

Your employer should allow you to contest your scores during the consultation process and before a decision is taken to dismiss.    You should, therefore, be given a copy of your assessment against the criteria. This should be broken down for each criterion and an explanation provided as to why you were given the scores.    You can ask for the scores of the others in your pool, but your employer is not under a strict legal obligation to provide this.  

The criterion of ‘skills’ is commonly used in selection exercises.  You may be able to challenge your score if the person who carried out the assessment did not know you.  You can argue that they would be unable to validly score you.   Also, if there is no reference to your past performance, for example past appraisals or information provided by someone who has managed you, this is an area for challenge. 

The use of some criteria may result in discrimination depending on your ‘protected characteristics’.  A criterion such as ‘flexibility’ may indirectly discriminate against women or amount to disability discrimination.   “Last in, first out” could be discriminatory on grounds of age.  With the criterion of ‘absence’ you could argue that  particular periods of absence should be discounted, for example, any absence for pregnancy-related illness, maternity or other family-friendly leave, or any absence which is connected with a disability.    The employer should also pick a period over which attendance is to be assessed which creates a level playing field.

6.     Suitable alternative employment

Your employer should take all reasonable steps to find you alternative employment in the organisation (or possibly within the group if part of a group) and consult with you about it.     If you are aware that there were roles available which were not flagged to you or you were not allowed to apply for that might make your dismissal unfair.  

If you are at risk of redundancy whilst on maternity leave your employer must offer you a suitable alternative vacancy, if one exists, over and above other employees.  You should not have to attend a competitive interview. 

7.     Collective consultation?

It is certainly worth asking your employer how many people are being made redundant in total.  This is because if there are 20 or more at one ‘establishment’ (which could be a particular office or standalone business area) your employer has a legal obligation to consult over the redundancies with a recognised union or elected employee representatives for a minimum period.   The minimum period is 30 days if 20 to 99 employees may be made redundant, or 45 days if there are 100 or more.  The employer must also run an election process if there are no existing employee representatives in place.

There is a high financial penalty on an employer for failing to do this or not doing it properly, of up to 90 days gross pay per person, so it is an area worth exploring. 

To learn more, please click here

If you want to find out more about the training Vertical Evolutions provides please contact us via the contact page or call on 020 8016 3668. Have a good week.