In a redundancy situation your employer has a duty to consider suitable alternative employment. What does this mean?

The dismissal of an employee for redundancy may be unfair if the employer fails to make a reasonable search for suitable alternative employment. 

What is the legal requirement?

There is a positive duty on an employer to take steps to avoid redundancy. This is a legal requirement. If it is not explored the dismissal may be unfair. The duty might include any number of steps such as removing contract workers from the workplace whose job you could take or exploring suitable roles in other group companies.

I am the only person being made redundant

If you are the only person in your workplace being selected for redundancy you should take legal advice. Sometimes a dismissal for another reason may be dressed up as a redundancy. Do not accept at face value that it is a genuine redundancy if you are the sole person being singled out, especially if, for example, you are returning to work following a period of health-related absence or parental leave. Redundancy is used colloquially as a term for any dismissal but not all dismissals are redundancies!

Finding another job in the same group of companies

This principle that an employer has a positive duty to seek suitable alternative employment in a redundancy scenario was established in the case of Vokes Limited v Bear [1973] IRLR 363. Mr Bear worked for a company which was part of a group of 300 companies. At least one of the group companies was advertising for a senior manager shortly after Mr Bear’s dismissal for redundancy. No attempt was made by the company to see whether Mr Bear could be employed elsewhere. His dismissal was held to be unfair. Note however there is no absolute obligation to look for roles in other legally independent companies in a group. 

Reasonable efforts must be made

In Quinton Hazell Ltd v WC Earl [1976] IRLR 296 it was established that the duty of the employer is not to make every possible effort to look for alternative employment but to make reasonable efforts. An employer must ensure that all potentially redundant employees are made aware of any vacancies.

Unfair dismissal

A recent case illustrates this all very neatly. In Hendy Group v Kennedy Mr Kennedy was a training manager in car sales with more than ten years’ experience prior to his training role as a car salesperson. His training role was placed at risk of redundancy. A genuine redundancy scenario had taken place and Mr Kennedy’s selection for redundancy was held to be fair but his claim for unfair dismissal was successful because his employer had failed in its legal duty to help him find another role in the business. 

No efforts made to find alternative employment

No reasonable effort had been made to identify or support alternative employment. No reasonable employer would have conducted itself in this way. Mr Kennedy could only see job vacancies that were being advertised externally and he was given no guidance or help on identifying other roles in the business that might have been suitable for him to apply for. He applied for several sales roles and having failed to be appointed his employer told him they would not entertain any further applications from him! 

What was HR’s role?

During this process HR was communicating with him via an email account he was unable to access and HR did not tell other managers in the business that Mr Kennedy’s role was at risk. There was simply no evidence that the employer had tried to match him to any vacancies. In short they made a hash of it. Mr Kennedy was awarded his full financial losses. 

The Employment Appeal Tribunal found that had the employer acted fairly and engaged with the duty to find suitable alternative employment Mr Kennedy would likely have secured another job in the business. 

Key things to consider

If you are being told you are at risk of redundancy pertinent issues to raise include:

1. Who else is being selected/put at risk? Am I the only person…? Alarm bells… 

2. Could there be an ulterior motive for my selection?

3. Is there a genuine redundancy situation here?

4. Even if there is a widespread redundancy is my actual role impacted or am I being “swept” up because of a protected reason (motherhood, disability, age, etc.)?

5. Is the employer informing me of suitable alternatives? How is this being communicated to me? Are they actively helping me or putting hurdles in the way?

6. If you are a disabled employee there is a positive duty on your employer to avoid redundancy which includes the making of reasonable adjustments. It is harder for a person with disabilities to find a job on the open market and they should be given preference in remaining roles over non-disabled employees. 

There are lots of redundancies at the current time due to economic factors and the impact of AI and other technology but if you are dealing with an issue it is vital to ask the right questions. You are entitled to fair treatment. 

Written by Yavnik Ganguly