Challenging Redundancy

Overview

Redundancy is a potentially fair reason for dismissal, but employers frequently get it wrong. If you believe your redundancy was not genuine, the selection was unfair, or the process was flawed, you may have a claim for unfair dismissal and/or discrimination.

Key Legislation

• Employment Rights Act 1996, Sections 135-181 - Right to redundancy pay and the definition of redundancy
• Trade Union and Labour Relations (Consolidation) Act 1992, Sections 188-198 - Collective consultation obligations
• Equality Act 2010 - Protects against discriminatory selection criteria
• ACAS Code of Practice - Expected procedural standards

What Counts as Redundancy?

Under Section 139 ERA, redundancy occurs when:

• The employer has ceased (or intends to cease) carrying on the business, or
• The requirements for employees to do work of a particular kind have ceased or diminished (or are expected to)

When Redundancy Can Be Challenged

1. Not a Genuine Redundancy

If the employer simply replaces you with someone else, or the role still exists under a different title, it may not be a genuine redundancy.

2. Unfair Selection

The employer must use objective, measurable criteria for selecting who is made redundant. Common (lawful) criteria include skills, experience, performance records, disciplinary history, and attendance. Criteria must not be discriminatory.

3. No or Inadequate Consultation

The employer must:

• Warn you that redundancy is being considered
• Consult individually with those at risk
• Consider alternatives to redundancy (redeployment, reduced hours, voluntary redundancy)
• For 20+ redundancies within 90 days at one establishment: collective consultation with employee representatives for at least 30 days (45 days for 100+)

4. Failure to Consider Suitable Alternative Employment

Before making you redundant, the employer must offer any suitable alternative roles that are available. If you unreasonably refuse a suitable alternative, you lose your right to redundancy pay.

5. Discriminatory Selection

If you were selected because of a protected characteristic (e.g., pregnancy, disability, age), this is both unfair dismissal and discrimination.

Your Statutory Redundancy Pay

If you have 2+ years' continuous service, you are entitled to statutory redundancy pay:

• Half a week's pay for each complete year of service where you were under 22
• One week's pay for each complete year between 22 and 40
• One and a half weeks' pay for each complete year aged 41 or over
• Weekly pay is capped at the statutory maximum (currently £643)
• Maximum 20 years of service counted

Step-by-Step: How to Challenge

Step 1: Request Full Documentation

Ask your employer for the selection criteria, your scores, the pool of employees considered, and any minutes from consultation meetings.

Step 2: Raise a Grievance

If you believe the process was unfair, write a formal grievance setting out your concerns. Reference the specific failures (lack of consultation, discriminatory criteria, etc.).

Step 3: ACAS Early Conciliation

Contact ACAS within 3 months less 1 day of your dismissal date. This is mandatory before issuing a tribunal claim.

Step 4: Employment Tribunal

If conciliation fails, file an ET1 claim for unfair dismissal (and discrimination if applicable).

Key Points

• Trial period for alternative roles: You get a 4-week trial period in a suitable alternative role. If it does not work out, you retain your right to redundancy pay.
• Enhanced redundancy pay: Many employers offer more than statutory minimum. Check your contract.
• Notice period: You are entitled to statutory or contractual notice (whichever is greater) on top of redundancy pay.
• Garden leave or PILON: Employers may pay in lieu of notice - ensure this does not reduce your redundancy pay.

EvenStance Can Help

EvenStance can analyse your redundancy process for procedural failures, generate your grievance letter, prepare your ACAS notification, and build your case for an employment tribunal claim.