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Employment Factsheet 2: Can my employer make me redundant?

Background

Redundancy is a form of dismissal from employment used to reduce the number of employees. In general terms an employer can make an employee redundant but they must follow the correct process. Your employment status is important: only employees are entitled to the legal protections around fair redundancy – not workers or self-employed people (but see Employment Factsheet 1 “What is my employment status and why does it matter?”).

Full-time and part-time employees are entitled to these legal protections, which still apply to redundancies made during and after the Covid-19 outbreak.

When can I be made redundant?

A genuine redundancy can happen for three reasons:
1. Your workplace closes or moves (temporarily or permanently),
2. The type of work you do will no longer be carried out at your workplace,
3. Fewer employees are needed to do the particular type of work you do.
It wouldn’t be a genuine redundancy if the only reason you were made redundant was because your manager didn’t like you, or if your employer had recently taken on someone new to do the same job as you and you were then made redundant.

The process for making people redundant

Where a whole work area is being closed down and an employer is making all employees in that area redundant then the they won’t have to follow a selection process. However, when only some employees are being made redundant then the selection process must be fair. There is no specified legal process that an employer must follow. However, a fair process would usually include:
1. A consultation stage involving potentially affected employees, including those not in the office (e.g. on maternity or furlough leave), and in some cases with a recognised union. You may be warned that you are at risk of redundancy.
2. Fair redundancy selection criteria and a fair application of these criteria,
3. Consideration of suitable alternative employment.

The Consultation/Warning Stage

You should have a meeting with your manager or the person in charge of the redundancy process to discuss the changes that your employer is planning to make and why you are at risk of redundancy. You could be told how many people are being considered for redundancy (sometimes called the “pool”) and how many jobs will be kept, how people will be selected for redundancy, and what you are entitled to if you are made redundant.

There are additional steps your employer must take if they are making more than a certain number of people redundant within a certain number of days, for example consulting with staff representatives or trade unions.

The Selection Stage

It is often the selection criteria and their application that causes most problems. Selection criteria involving your standard of work and your discipline record are likely to be fair. However, it is unfair to base selection criteria on other factors such as age or length of time that you have been employed: you can find a list of unfair or discriminatory criteria at https://www.acas.org.uk/your-rights-during-redundancy/check-your-redundancy-is-fair).

If you have been continuously employed for at least two years and are made redundant in a way that isn’t fair then you may be able to claim unfair dismissal. Sometimes you can claim even if you have less than two years continuous employment, for example if you were selected for redundancy on the basis of “protected characteristics” (race or ethnicity, age, sex, disability, religion or belief, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership).

Considering suitable alternative employment

Your employer might offer you suitable alternative employment as an alternative to redundancy. Many factors will determine whether the alternative employment is suitable or not, e.g. your currents skills in relation to the alternative employment and the hours and location of this work and the rate of pay.
You should consider any suitable alternative employment offered to you carefully as you may lose your right to statutory redundancy pay if you unreasonably turn down such an offer. You are entitled to a trial of the alternative employment before deciding whether it is suitable for you or not, for example to see if the travelling distance/time are acceptable and whether you can make appropriate childcare arrangements.

Where to go for further information

For help about checking if your redundancy is fair you can:
• Contact Suffolk Law Centre (see details on left-hand panel), or
• Check the ACAS (Advisory, Conciliation and Arbitration Service) website https://www.acas.org.uk/your-rights-during-redundancy. ACAS give employees and employers free workplace advice.
• Check the government website “Redundancy: your rights” at https://www.gov.uk/redundancy-your-rights.

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