Redundancy, but job opportunity not offered internally

I note that you and two other staff have been selected for redundancy consultation, but have reservations about how your employer has reached the decision to make redundancies and about how it has made its selections for the redundancy pool.

If you are dismissed on the grounds of redundancy, you may have a claim for unfair dismissal if your employer has not acted fairly and handled the redundancy procedure appropriately. In short, your employer must firstly establish that this is a genuine redundancy situation. In your situation, this would mean that your employer needs to establish that it has a reduced requirement for employees to carry out work of the particular kind that you do. Your employer should consider what particular kind of work is disappearing and which employees do this particular work. If your employer can’t establish a genuine redundancy situation, it may still demonstrate that your dismissal is for ‘some other substantial reason’, this being a business reorganisation (possibly on efficiency grounds), and this is also a  potentially fair reason for dismissal.

Even if your employer can demonstrate a genuine redundancy situation, it must still follow a fair procedure in effecting any dismissals on redundancy grounds in order to defeat claims for unfair dismissal. In short, this effectively means that your employer must identify an appropriate pool for selection; consult with individuals in the pool; apply objective selection criteria to those in the pool; and consider suitable alternative employment where appropriate. In deciding on the appropriate selection pool, unfortunately, there are no fixed rules about how the pool should be defined and your employer has a wider discretion in this respect. A tribunal will rarely interfere in an employer’s decision as to selection pool if it’s decision is reasonable in the circumstances. Generally staff who do similar work or who have interchangeable skills will be included in the selection pool. It may be that you could argue that the new member of staff should be included in the pool because his/her skills are interchangeable, but I would need more information on this.

In following a fair redundancy process, your employer is also obliged to consider whether any suitable alternative vacancies exist. Your employer isn’t obliged to create alternative employment for you where no such employment exists. However, it should undertake a sufficiently thorough search for alternative employment. The fairness of a redundancy dismissal is judged when your employment actually terminates and therefore your employer should ensure that it continues to search for possible alternative employment until this point.

I note that your employer has recruited an individual who you state is now ‘immune’ from redundancy and you question why this role wasn’t offered to anyone internally in order to avoid redundancies. The timing of this vacancy arising will be important to the fairness of any redundancy dismissals. This is because, as well as considering suitable alternative vacancies that may exist after the redundancy situation has arisen (as outlined above), at the outset of a fair redundancy procedure, and throughout the consultation process, your employer should also have considered whether it could avoid making compulsory redundancies or reduce the number of compulsory redundancies by suspending or restricting recruitment. It may be that this vacancy arose before potential redundancies became an issue, or that this position was completely unrelated to the subsequent redundancy situation and I would need more information to be able to advise on this. However, if your employer cannot show that it followed a fair process then they risk any redundancy being an unfair dismissal.

Should you wish to challenge the redundancy process your employer is following at this stage, I would suggest you submit a formal grievance outlining your concerns. Otherwise, if you are made redundant and feel that your employer has not followed a fair redundancy process then I would advise you to take specific legal advice immediately in relation to a potential unfair dismissal claim. Such claims must be brought to an employment tribunal within three months of your dismissal and you would also need to go through the Acas pre-conciliation procedures before a claim would be accepted by an employment tribunal.

Should you require any further clarification regarding the above issues then please do not hesitate to contact Tracey Guest on 0161 975 3823.

*Helen Frankland assisted with this answer.

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