Redundancy law advice for employers
If you follow the correct process, an employer can dismiss an employee by reason of a redundancy or restructuring and avoid paying out on employment law claims.
The key is a to have a “fair reason”. But, if the employer fails to follow the correct redundancy process it risks an unfair dismissal or discrimination claim plus paying out compensation. Even worse, you could be dragged through the Employment Tribunal facing adverse publicity.
Making staff redundant due to coronavirus/covid-19
Employers have been facing and are continuing to face very difficult redundancy decisions caused by coronavirus/covid-19. As will be seen below, complying with the correct redundancy process is essential to avoid potential unfair dismissal and/or discrimination claims.
In normal business and economic conditions following process takes time and must be done carefully. We are not in normal times. Notwithstanding 1 of the legal aspects of fair redundancy process is to take into account the size and resources of employers, many employers may be caught out trying to quickly make business critical redundancy decisions caused by the coronavirus lockdown.
If you are concerned and need fast, cost effective, specialist and experienced solicitors, we can help.
Redundancy advice for employers
We are specialist employment law solicitors and have dealt with a lot of redundancy situations. This translates to cost savings for you as we can quickly determine how best to proceed.
- We cover all the areas you will need. We help you to justify your decisions in a way most likely to avoid an employment law claim.
- Experience and knowledge in how to apply our skills successfully to get the job done.
- We can meet a short notice at our central London offices. You will be looked after by a partner.
Fair reasons for redundancy
A “fair reason” for an employee dismissal by reason of redundancy, is a reason that is wholly or mainly attributable to the business:
- Ceasing trading;
- Relocating; or
- Requiring fewer employees for a particular task.
Not every redundancy is genuine. The employee may claim their employer targeted them for other reasons. Employees challenge employers’ attempts to disguise dismissals as a redundancies.
Redundancy process mistakes
Over the years we have seen that employers need support around aspects of the process. In response we have built up dedicated redundancy employment law specialists who handle not only the law but the practical implementation.
Selecting employees for a redundancy pool
Most problems arise around what to do with employees who are:
- Absent on sick leave;
- Approaching retirement age;
- On maternity leave;
- About to return from maternity leave; and
- Employee representations during the consultation process.
A decision is needed on whether employees should be placed on gardening leave to protect against a breach of restrictive covenants. Concerns revolve around the risk of the employee:
- Poaching clients, or
- Joining a competitor.
Communications to employees under the redundancy process
Many employers use us to help draft the communications presented to redundant or restructured employees. The right message has to be conveyed and obtaining agreement can make the process much easier.
The redundancy process requires a little planning and well drafted documentation. Nevertheless employers can execute the process quickly and effectively.
Redundancy employee Consultation
An employer planning a redundancy must follow defined steps to identify and then consult with affected employee(s). A failure to follow these steps could be grounds for an unfair dismissal claim.
Employers are obliged to consult with employees individually.
Larger employer redundancies
Employers who will make over 20 employees redundant in a 90 day period are obliged to consult collectively with employees. A failure to follow collective consultation can lead to penal damages awards of up to 12 weeks’ pay per employee.
Redundancy selection criteria
Employers must identify the pool of possible employees at risk. They must then score the at-risk employees to select the actual candidate(s). Redundant employees often challenge this scoring as unfair, especially if the employer did not consult.
Employers often identify a “pool of one”. This avoids having to score employees. Employees can challenge this, because employers did not correctly execute the required redundancy process.
The redundancy pool
There are no fixed rules about how to define a redundancy pool. If employers show their choice of pool was reasonable in the circumstances, an employment tribunal is unlikely to challenge the decision.
For example, it is not always unfair to choose a redundancy pool that is the same size as the number of redundancies. However, only choose this option if there are strong reasons for doing so. You should remain wary of overstating the commercial risks of a wider pool.
The choice of pool initially sounds simple. Just define the:
- Particular kind of work that is disappearing;
- Employees who do this work;
Redundancy pool: interchangeable skills
A wider pool may be required, especially if the work is “low-skilled” and the skills are interchangeable. Hence, the business should consider the extent to which employees do similar work, and their jobs are interchangeable. Look at the reality of employees’ day-to-day activities, as well as the employment documentation.
Identifying the pool is more complicated if your employees:
- Are multi-skilled;
- Do different types of work; or
- Can be required to do different types of work.
Objections that could be made by employees
Employees are more likely to object to being labelled as redundant, especially if they share interchangeable skills with other employees. Placing an employee in the pool because their current job is disappearing may be unreasonable, if:
- Another employee doing different work is ignored, yet the employee could do this other job;
- The employee has previously done other work;
- Another employee with interchangeable skills has less service.
Alternatives to redundancy
An employer is obliged to consider alternatives to dismissal e.g.:
- Suspend or restrict recruitment;
- Terminate contractors, or not renew their contracts;
- Alternative roles: perhaps at a different group company. This may involve retraining and a statutory trial period;
- Bumping: dismiss a different employee;
- Reduced hours, pay reductions, or other cost savings;
- Consultancy arrangements; and
- Invite voluntary redundancy.
Appeals against the redundancy process
An employee can appeal the redundancy decision. Usually the appeal fails. However, employees are often advised to appeal before claiming unfair dismissal.
Employees who are dismissed by reason of redundancy may be entitled to a statutory redundancy payment. Additionally, they may be an express or implied contractual right to an enhanced payment.
There are process requirements when considering staff redundancies. The correct notice of potential redundancies, usually in the form of a letter to employees, is very important both in terms of process and form. If you need assistance or would feel more comfortable getting professional legal help to make sure you get things right, please do get in contact with us.
Making employees redundant is not only extremely stressful for both employer and employee but is also a legal minefield. If you want to reduce your risks and stress, get in contact with us. We are a cost effective, highly experienced choice for employers seeking legal advice in this area. Please do get in contact.