The Employment Rights Act 1996 sets out the circumstances that meet the statutory (legal) definition of redundancy.
Section 139(1) identifies three sets of circumstances.
- The business is closing down.
- The workplace is closing (the site is closing or the site is being relocated).
- There is a diminished need in the business for employees to do work of a particular kind.
The third type is where most issues arise. Sometimes it is not clear if there really is a diminished need or if the employer simply does not want a particular person to do that work. This might be for a discriminatory reason, such as that the employee is pregnant or a new parent, or that the employee has a disability and needs reasonable adjustments, which the employer finds is a nuisance.
As litigation lawyers, we know that unscrupulous employers use redundancy as a cover to dismiss employees who are not genuinely redundant in strict legal terms.
If you think your selection for redundancy smells bad, take early advice. Most good lawyers will give you an initial steer as to whether you might have grounds to challenge this.
When might you be at risk of a bogus redundancy?
- You have just returned from maternity leave or are on maternity leave, and your job has disappeared. Just your job, no one else’s.
- You’ve made a flexible working request or asked for home-based working.
- You have had time off for health reasons or have to take time off for medical appointments.
- You have asked your employer to make reasonable adjustments.
- You have raised a grievance or had some kind of falling out with a manager.
- You have blown the whistle.
- New management has come in, and your face does not fit.
What might the signs be that your redundancy is not legitimate?
- You are the only person in your team or area who has been put at risk.
- You have been told your role is redundant, but a contractor is being hired to do it instead of you.
- The manager you have been having issues with is charged with running your redundancy consultation process.
- The same person is hearing your redundancy appeal who made the original decision.
- You quite simply feel that you have been singled out and that things might not be as they appear.
The moral here is don’t take it at face value that your redundancy is legitimate. Ask questions. Push back. Ask your employer who else is at risk? Ask them to explain the reason for the redundancy. Above all, ask them about the availability of suitable alternatives to dismissal – what other roles are available in the business? They have a duty to consider alternatives and to show they have assisted you and tried to avoid dismissal.
This blog was written by Manuela de Castro, Senior Solicitor at didlaw.
