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I am under consulation for redundancy and part of a suitable alternative pool reducing from five employees to four. I had been told that by being part of the pool my company will honour my part-time contract. However, by the end of the process, I have been offered a job on a full-time basis or take redundancy. Is this grounds for unfair dismissal?
Redundancy is one of the five potentially fair reasons to dismiss, but in order for the dismissal to be fair, an employer must (a) establish whether there is a genuine redundancy situation and (b) carry out a fair procedure.
A redundancy situation can arise in a number of circumstances:
– The closure of the business;
– The closure of one or several sites or relocation to a new site;
– The diminished requirement of the business for employees to do work of a particular kind.
From your query it would appear that there is a reduced need for employees to do work of a particular kind, given that your employer is looking to reduce from five employees to four. Note that generally an employment tribunal will not delve too deeply into a company’s rationale for making redundancies (appreciating that a company will understand its own business needs far better) provided it is satisfied that redundancy is the genuine reason for the dismissal.
The second requirement in any redundancy dismissal is to ensure the procedure that is followed is fair, and the first step in the process is to consider the appropriate pool of employees for selection. An employer has quite a wide discretion in this area, but a good starting point is to consider what kind of work is diminishing and the extent to which employees are doing similar work. Ultimately, it should be able to demonstrate that it acted reasonably and applied its mind to the choice of pool. Failure to do so can render a dismissal unfair.
It should then compile some objective selection criteria against which the “at risk” employees can be scored. You should have sight of this criteria and be given the opportunity to challenge your scores if necessary. Certainly your provisional selection for redundancy should be based on your scoring against the criteria and not on your part time status as this would constitute less favourable treatment under Regulation 5 of the Part Time Workers’ Regulations 2000 (and possibly indirect sex discrimination).
If your selection for redundancy is reasonable and justified, then part of the process is to consider whether there are ways in which redundancy can be avoided. This will include looking at whether there is any suitable alternative employment within the organisation and is likely to be why your employer has put the offer of a full-time role to you. On the basis that the role offered is full time and you are part time I would not consider this role to be “suitable alternative employment” for you, meaning that if you were to turn it down, you would still be entitled to a redundancy payment.
It is not clear from your query whether or not the new role you have been offered is the same as the one you are currently carrying out, only full time. If this is the case, then I would argue that it is not a genuine redundancy situation as there is no diminished need for the type of work you do and therefore your dismissal is unfair. If the full time role is significantly different, however, it might be a genuine redundancy, but a simple change from part time to full time is not.
Note that if you do wish to lodge a claim in the Employment Tribunal, you will need to do so within three months less one day of your last day of employment. You will also need to go through ACAS Early Conciliation prior to lodging your claim, whereby the parties can attempt to settle the matter before proceedings are issued.