Partner Sue Dowling, head of our Employment Law team, explains how employees facing redundancy may have a valid claim for unfair dismissal if the process is not conducted fairly.
Although “redundancy” is listed in Employment legislation as a potentially “fair” reason for an organisation to bring an employee’s role and employment to an end, if your employer is giving this as the reason for you losing your job, you may still have a valid (potential) claim for compensation for “unfair dismissal” depending on the circumstances of your particular case.
If successful in such a claim, you may be able to recover compensation well in excess of the very limited statutory redundancy pay which an employer is typically obliged to pay on making an employee’s role redundant. Where the reason for the loss of your job is tainted with unlawful discrimination, the compensation that may be awarded to you can be substantial (including a sum for “injury to feelings”).
It is not sufficient for an employer to simply quote “redundancy” as the reason for employment coming to an end. The facts surrounding the situation need to be considered carefully to see whether they, in reality, truly support a “redundancy” (a term which is defined in the Employment Acts); whether this was the real reason for your employment coming to an end, and crucially whether a fair procedure was adopted before your role was selected, and before your employment was brought to an end.
A “redundancy” termination may (for example) be “unfair” if:
- There was no meaningful consultation with you before the decision to make your role redundant is made;
- If your role is selected for redundancy applying artificial criteria – for example when an employer labels your role to be “unique” and no longer required by the company, but in reality, you have duties; skills and abilities which are very similar to other colleagues;
- If your role is selected for redundancy by your employer applying criteria which are fundamentally biased, discriminatory, or perverse or applies scores to criteria adopting a flawed approach, not supported by genuine facts;
- The facts suggest that you have lost your job due to your age, sex, due to a disability (a reason related to a disability for example sickness absence), due to being on/returning from maternity leave or being pregnant or due to other reasons which have a basis in unlawful discrimination;
- You have been selected for redundancy due to raising legitimate concerns about your workplace, work practices or due to having raised a grievance or concerns about the actions of others.
- You were not considered for vacancies at the organisation for which you were suitable;
- The consultation process was a “rubber-stamping” exercise, with your employer ignoring your viable suggestions (such as part-time options at a reduced salary) to avoid the loss of your role.
Where the “redundancy” is potentially “unfair”, there may be the possibility of commencing a “protected” negotiation with your employer, with a view to exploring whether it is prepared to halt the redundancy process or (more typically) whether it is prepared to offer you an increased enhanced redundancy sum by way of a negotiated settlement – typically through a Settlement Agreement process. We can discuss with you how we may be able to assist you in this regard.
You may find our blog articles, ‘Redundancy FAQs – A Guide for Employees’, 'Unfair Dismissal and/or Unlawful Discrimination - Can I Claim Compensation If I am Dismissed Whilst on, or at the End of, Furlough Leave?' and 'What is a Settlement Agreement and What Should It Contain?' and ‘What Are An Employee's Protected Characteristics’, useful.
For further information or legal advice, please contact email@example.com or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.