Redundancy challenges are on the increase, but when can you legally challenge your redundancy? Philip Landau, employment law solicitor and partner of London law firm Landau Zeffert Weir, explains what rules apply.

With redundancies still commonplace, many employees are choosing to challenge their redundancy knowing that it may be a long time before they secure another position. It’s worth reflecting on the legal conditions that make a redundancy genuine. If you lose your job and there is a failure by your employer to follow a correct process, this could put you in a strong bargaining position to demand an enhanced redundancy. You ultimately have the right to apply to an employment tribunal for compensation.

If there is to be a genuine and legally watertight redundancy, the following must apply:

1). Your old job must have disappeared. If you are dismissed because of redundancy, this means that your employer needs to reduce the number of staff that are employed. This will be either because the place where you work is closing down, or because there is no longer the need (or expected to be the need) for you to carry out the particular kind of work that you do. Normally your job must have disappeared. It’s not a credible redundancy if your employer immediately takes on a direct replacement for you working full-time in your old role. It’s acceptable though, for your employer to amalgamate your role with a number of different roles to create a new position, and have chosen someone else to work in that position.

2). Your employer must properly consult with you. Consultation must be carried out within a reasonable time and shouldn’t be a mechanical exercise where a decision is presented to an employee as a mere formality. Where more than 100 people are being made redundant within 90 days from the same establishment (this can mean within the same department in which you work), there is a minimum consultation period of 90 days before the first dismissal can be made and notices of redundancy sent out. This reduces to 30 days where between 20 and 99 staff are being let go. Some employers will choose to pay an additional lump sum within the redundancy package to reflect this minimum consultation period rather than go through the actual process. They would otherwise be ordered to pay this sum anyway as a penalty by the employment tribunal. Consultations must be completed before notices of dismissal are sent out.

3. The process that selected you for redundancy must be fair and transparent. You should be selected in accordance with any customary arrangement or agreed procedure. If no such arrangement or procedure exists, there should be a transparent selection process that involves scoring employees against a range of criteria, such as performance and leadership skills, length of service and future potential to your employer. It’s not usually acceptable to make someone redundant solely on the grounds of their cost unless they’ve been offered the chance to reduce their salary first. You are entitled to see the selection criteria used and the scorings of you and your colleagues, although the actual names of your colleagues can be blanked out for data protection reasons.

4. You should be considered for suitable alternative jobs. Your employer must consider what other roles could be available and whether it’s practical to retrain you for that position. You shouldn’t adopt a passive role in this regard – many employers won’t be forthcoming with alternative roles, even where they clearly exist. If you’re aware of such a role, bring it to the attention of your employer and make it clear you’d like to apply for it. Failure by the employer to properly consider this could give you a right to claim unfair dismissal.

5. Right to appeal. Finally, you should be given the right to appeal the redundancy after you have been dismissed. There’s usually a period of up to 5 days for you to lodge an appeal asking for your employer to reconsider the redundancy, although you must have reasonable grounds for doing so. You won’t be surprised to hear that the majority of appeals are unsuccessful. Employers seem to have a knack of always being able to justify the decision by commercial necessity.

Don’t forget you only have 3 months from the termination of your employment in which to make a claim to an employment tribunal otherwise that right will be lost for good. It’s amazing how many times I’m approached by someone who has been stewing over their dismissal for 6 months (or longer) before seeking legal advice, and who might otherwise have had a good claim.

Jobsite have partnered with specialist employment law solicitor Philip Landau, to bring you expert advice on your rights in all key areas of your working life. As a Jobsite user you are also entitled to receive a free initial consultation on all employment law issues from Philip.

Philip can help with a number of legal problems; perhaps you feel your employer isn’t following their legal responsibilities, you believe you have been dismissed unfairly or you are unsure about clauses in your contract. Once he knows your specific situation he can let you know what your rights are and what action you can take.

To get in touch with Philip, click the link below and he will contact you to discuss your situation in more detail.

Philip Landau is a solicitor and partner, specialising in employment law, in the London legal firm Landau Zeffertt Weir.

Click here to here to contact Philip

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The information and any commentary on the law on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, is assumed by either Jobsite or Landau Zeffertt Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.

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