Redundancy occurs when the employer requires fewer or no workers to do work of a specific kind at a particular location, and not just whether the work itself has ceased or diminished.
The period leading up to redundancy can be a stressful time for those involved, including the managers conducting the selection and consultation procedures, as well as the employees who may lose their jobs. It is vital from the point of view of protecting the organisation from potentially successful claims of unfair dismissal that a genuine redundancy situation exists and that fair and objective selection criteria are used and where appropriate, those at risk of redundancy are scored against these criteria. The issue of alternative employment must always be adequately explored before any redundancy dismissal is confirmed.
In the real world, fairly selecting employees for redundancy in legal terms can be fraught with practical problems. For example, an employer might want to keep an employee with only 9 months service but lose somebody with several year’s service because they are not as good as the new employee. Also, assessing performance objectively is often difficult because of the lack of available records to demonstrate that an employee who has been provisionally selected has for example poor IT skills or a lower productivity rate than another employee. Unquantifiable but important issues such as ‘attitude’ are in reality, one of the factors that employers want to take into account when selecting employees for redundancy but such things are very much open to challenge by the employee especially if appraisal records are non-existent or patchy.
Employers need to take particular care not to give employees grounds to claim that they have been discriminated against on the grounds of a protected characteristic under the Equality Act. If an employee can show that their selection for redundancy was made at least partly on the grounds of a protected characteristic – for example, their race, sexual orientation or medical condition – then they are likely to have the basis for a successful discrimination claim as well as an unfair dismissal claim to the employment tribunals.
If I can help your organisation with any of these issues, please call me today on 01892 538762 or 07900 695142.