A redundancy procedure is an incredibly stressful and anxious time for any employee. It is important that your employer follows the correct procedure when implementing a redundancy situation. This blog looks at one element of the redundancy procedure – fair selection for redundancy.
What is a Redundancy Procedure?
A redundancy procedure will occur when your employer tells you that sadly your role is no longer available or necessary within the company. This can be an extremely worrying time for you and your family.
It is important that a correct, fair, and reasonable redundancy procedure is conducted.
If the employer has followed a correct, fair, and reasonable redundancy procedure, you should be able to answer all of the following questions:
- Has a genuine redundancy situation occurred?
- Has a period of genuine consultation taken place?
- Has a pool of ‘at-risk’ candidates been correctly identified?
- Has there been a fair assessment and selection from that pool?
- Has the employer considered suitable alternative vacancies?
This blog focuses on question 3 and 4, but for further information on all of these important redundancy steps, please see our blog: https://lincslaw.co.uk/blog/are-you-being-made-redundant-five-questions-to-ask/
Has A Pool of ‘At-Risk’ Candidates been fairly identified?
If you have been selected by your employer as being ‘at-risk’ of redundancy, one of the first things you should be told in your consultation meeting is whether you are in a pool of at-risk candidates or are a stand-alone role (discussed below).
A pool of ‘at-risk’ candidates are other employees who do the same or similar role as you and therefore are at-risk of being made redundant at the same time.
It is important that your employer correctly and fairly identifies the pool. It should not be artificially narrow. The question of the pool will be fact dependant on each specific case and will depend on the individual business and industry sector. However, generally, employees who do the same or similar role with interchangeable skills and duties should be placed in a pool together.
For example, an employee says that restructure and cuts need to be made to the sales team. In this scenario, all employees who are in the sales team should be placed in the pool together.
Sometimes it will not be appropriate to be placed in a pool. This will likely occur when the redundant role is specific or unique or only one person does that role in the entire company.
For example, if there is only one Marketing Director in a company and they decide that the role is now redundant. If no one else in the company carries out a Marketing role then it would be appropriate for the Marketing Director to be classed as a stand-alone role.
Has There Been Fair Assessment and Selection from the Pool?
Once a pool of ‘at-risk’ candidates has been correctly and fairly identified, the next stage is to ensure that a fair assessment and selection from that pool takes place.
During your consultation period you should be told how many employees your employer intends to make redundant. For example, is there to be a 50% reduction in the workforce?
Your employer should then carry out a fair assessment on those employees in the pool to allow for a fair selection. A fair assessment will involve your employer scoring the at-risk employees against certain questions or applying a scoring matrix.
What is important is that you are scored against objective questions which can be applied fairly and objectively to all at-risk candidates in the pool. The employer should avoid any subjective questions which can unfairly prejudice any one at-risk candidate. For example, one question in the matrix could be “Attendance over the last 12 months”. If that question is applied to the pool of at-risk candidates and one candidate in the pool has been on maternity leave or sickness leave for 7 out of the past 12 months, they will unreasonably score lower on this question than other candidates in the pool.
You are entitled to request that your employer provides you with a copy of the matrix questions and your individual scores.
If you consider that the matrix questions are subjective or you have been incorrectly scored, you should raise these concerns during your consultation period.
What Should I Do If I Have Been Made Redundant and I Consider the Process and Selection Was Unfair?
If you are made redundant you can appeal the redundancy decision. You should be informed of your right to appeal in your dismissal letter.
In your appeal you should outline the reasons you consider the redundancy process has not been properly and fairly conducted. Your employer must then investigate your appeal and the points you have raised. If possible, the redundancy appeal should be conducted by an independent person who was not involved in the redundancy process.
For more information on redundancy appeals, please see our blog https://lincslaw.co.uk/blog/i-have-been-made-redundant-should-i-appeal-or-submit-a-grievance/
Employment Tribunal Claims and Time Limits
If you have been redundant and consider that the redundancy procedure was not conducted properly, you may have a claim for Unfair Dismissal.
If you want to issue a claim of Unfair Dismissal, there are strict timescales which you must comply with. You must commence ACAS Early Conciliation within 3 months less one day from date of dismissal.
ACAS Early Conciliation is a mandatory process that all potential litigants must go through before they can bring a claim to the Employment Tribunal. The aim of ACAS is to try and resolve the dispute between you and your employer without the need for further claims to be brought in the Employment Tribunal. If you are unable to resolve your dispute through ACAS Early Conciliation you will then be able to proceed to the Employment Tribunal.
These timescales must be adhered to regardless of whether you have appealed and are waiting for your appeal to be investigated.
Lincs Law Employment Solicitors Can Help You
If you have are going through a redundancy procedure and would like further assistance, please do not hesitate to contact us for a free, no obligation, initial phone call on 01522 440512. For more information on redundancy, please see our website: https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/redundancy/
Specialist Employment Solicitor
Lincs Law Employment Solicitors