Dismissal on grounds of redundancy is probably one of the most common reasons for dismissing staff. In today's environment however we find that organisations are constantly trimming small numbers of staff rather than making swingeing cuts in staffing levels as seen a decade or so ago.
Contrary to popular belief, a redundancy is in law a dismissal and therefore subject to the statutory discipline and dismissal procedures. A failure to follow the statutory procedure would in effect make even a voluntary redundancy automatically unfair (provided the employee was inclined to take the matter to a tribunal).
The greatest difficulties we experience with redundancies relate to the consultation requirements, which so many managers find very uncomfortable and insincere given that quite often business decisions have already been made prior to consultation starting. Consultation is however necessary, and a failure to consult adequately can result in compensation of up to 13 weeks pay per individual affected.
After formally notifying an employee of redundancy, but before their notice period comes to an end and monies are paid, more business comes in. Can we require our employee to stay on i.e. cancel the redundancy notice?
You cannot require anyone to stay on with you after they have received formal notification of dismissal, but if there is alternative work available you must offer it to those who you have given notice to or you will run the risk of the dismissals being unfair.
We have been consulting with 10 staff about redundancy. All are likely to lose their roles however we have 2 alternative positions available. As required, one was offered to the person on maternity leave but she said she didn’t want it. However now, just one day before the redundancies take effect and two of our other employees move into the alternative positions, she has now changed her mind and said that she does want one of the roles. Do we have to give it to her if she is suitably qualified?
In this case as long as you have evidence that via consultation the employee was offered the role and that she refused it after being given a reasonable period in which to consider it, you can advise that the previous vacancies no longer exist as the roles have been formally accepted by others.
We have been advised to carry out redundancy consultation with 5 individuals over a two week period before issuing any redundancy notices. 2 members of staff however have said that they don’t want to attend any meetings and they want to be made redundant now. Is it okay to do so?
The safest possible route in all redundancy situations is to undertake a meaningful period of consultation (2 weeks is a good period) and if the employee consistently fails to turn up to arranged meetings (which you have invited them to in writing) during that time then record that fact, but do not be pushed/bullied into an early decision. It is worth noting that if you are found to have failed to consult with staff you may be penalised with a protective award of up to 13 weeks’ pay for each member of staff that should have been consulted with, even if it was just one person who made the complaint to Tribunal!
A director has messed up by telling an employee he is to be made redundant before we have even properly started the consultation process. How can we now protect our business from a tribunal claim for unfair dismissal?
Operation Damage Limitation needs to come into play! Our preferred approach would be to talk to the individual, apologise for the mistake, any misunderstanding, anxiety etc and advise them that of course no decision has actually been taken, that a full consultation process will be followed. You may be able to recover the situation if they stick out the consultation, thereby accepting your attempt to put right any breach of trust and breach of contract.
How do I find out more?
If you are an employer and require expert support in making redunduncies, why not give us a call for a completely confidential discussion. Otherwise try the ACAS free employers/employees helpline or look at their website: www.acas.org.uk
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