Redundancy Whilst Recruiting
We are getting increasing numbers of queries from clients at risk of redundancy. In the current times, such enquiries are not surprising. What is surprising is the number of people being made redundant whilst their employer is actively recruiting for staff. At Lincs Law Employment Solicitors, we want to help and this post sets out information and guidance to assist. However, if you would like to discuss your situation with a qualified, specialist, employment solicitor, just call us on 01522 440512 for a free consultation.
Redundancy
As a brief overview, where an employer is considering making redundancies, they must establish that:
- redundancy is the real reason for the dismissal; and,
- they have acted reasonably, in all the circumstances of the case, in dismissing their employee for redundancy.
The reasonableness of the employer will be considered in the context of the procedures used to select the employee being made redundant. Other blogs and pages on our website deal with redundancy, consultation and selection procedures for example https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy/
This post deals with the particular issue of whether the employee being made redundant should have been offered another position with their employer whilst going through the redundancy process.
Suitable Alternative Employment
Essentially, where an employee is at risk of redundancy, the employer is obliged to consider and offer any available suitable alternative post they may have which would avoid the employee’s redundancy. What is suitable alternative employment will depend upon the nature of the available post and the qualification and skills of the employee at risk. However, if the employee could undertake the role or, could undertake the role with some training, then the vacant position should be offered to them.
Training Needed?
Many clients who have been made redundant were first required by their employer to be on Furlough Leave, often for a substantial period. Whilst it is generally known that an employee cannot work for their employer during Furlough Leave, they could, of course, undertake training. This is a real issue for clients who (quite rightly) state that if their own post was vulnerable to redundancy, they would have been happy to use their Furlough Leave to retrain in readiness to undertake the vacant role.
Furlough Leave adds an additional dimension to the issue of Suitable Alternative Employment, as, of course, it will often be significantly cheaper to retrain staff at risk of redundancy for vacant roles than recruit externally.
Vacant Positions Available During the Redundancy Process
In circumstances where employers want to make employees redundant, whilst at the same time actively recruiting to vacancies, there might well be an argument that the employees at risk are entitled to be offered that vacancy as suitable alternative employment.
The steps you decide to take will depend on your circumstances. However, if you are aware that a position you could do (or could do with some training) is available whilst you are going through the consultation process you should raise this as soon as possible. Be clear that you consider yourself suitable for the position and that by offering you the post your employers would be avoiding your compulsory redundancy. You should raise the fact that there is a suitable position for you at all meetings (making sure your comments are recorded). Ideally, just after the meeting email or write to your employer repeating your comments that you believe the vacancy is suitable for you.
In the event the position is being advertised (externally or internally), make sure you apply. This is even if your employer has suggested that you would not be suitable. By applying, your employer will be forced to consider your application.
If your employer fails to offer you the suitable vacant position, this could give rise to an Employment Tribunal claim.
Vacant Positions Available During Redundancy Notice Period
Many employers go through a redundancy process and think that is all they are required to do. However, the obligation to offer suitable alternative employment to an employee at risk of redundancy continues throughout the whole process, right up to the point when employment ends. Unfortunately, employers sometimes forget their ongoing obligation, especially where the redundant employee has a long notice period.
What may have initially been a fair decision to make an employee redundant, can later become an unfair dismissal due to the employer’s failure to meet their ongoing obligations during the employee’s notice period. If vacancies arise with your employer whilst you are serving your notice, you should be considered for those available positions as a means of avoiding your redundancy.
If you become aware of a vacant position, you should contact your employer immediately stating that you consider the position to be suitable alternative employment.
If the vacant position is being advertised (externally or internally), make sure you apply. This is even if your employer has suggested that you would not be suitable. By applying, your employer will be forced to consider your application.
Finally, if your employer fails to offer you the suitable vacant position, this could give rise to an Employment Tribunal claim.
Finding Out About Recruitment After Redundancy Dismissal
Many clients have been outraged to be made redundant, only to find their employer is recruiting, or has recruited, external candidates soon after they have left. This is always a difficult situation and there are many “Google Myths” suggesting there is a fixed period of time when an employer can recruit after redundancies. This is simply not true.
For clients in this situation, I start by asking them to work out the timings and estimates (as best they can):-
- Set out the dates when the redundancy consultations started and the various meetings took place;
- Check your notes about what, if any, information your employer gave to you about suitable alternative vacancies. Particularly, did you state you would be happy to transfer to any suitable position but your employer said there were none available;
- Work out your notice dates and last day of employment. Factor in any payment in lieu of notice you may have received;
- Identify (or estimate if you don’t have all the information) when your employer began recruiting for the position you believe should have been offered to you; and,
- If you can, apply! This will force your employer to consider your application.
Assuming there has been an overlap in the recruitment process and/or your employer has misled you about vacancies, you may have an Employment Tribunal claim.
Employment Tribunal Claim
If any of the above situations apply to you, you may have a claim at the Employment Tribunal. However, please be aware that there are strict time limits and, depending upon when you discover the recruitment, you may have to act very quickly to protect your claim. More information is available at our blog https://lincslaw.co.uk/blog/time-limits-in-the-employment-tribunal/
Lincs Law Employment Solicitors Can Help You
If you are going through a redundancy process and are worried about being made redundant, please call us on 01522 440512 for a free initial telephone consultation. If you would like more information about redundancy procedures, please visit our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy/
If you have been made redundant and your employer’s decision was unfair, you may have an Employment Tribunal claim. Click on the link to take our online questionnaire and find out: https://lincslaw.co.uk/have-you-been-made-redundant-do-you-have-an-unfair-dismissal-claim/
Sally Hubbard
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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