We are often asked about claims for Unfair Dismissal from clients who have been made redundant by their Employer. If you have been made redundant and have concerns about the fairness and lawfulness of your dismissal, read on.
Unfair Dismissal: The Basics
Claims for Unfair Dismissal are claims under the Employment Rights Act 1996. At the moment (although this is likely to change in January 2027) you need to have been an Employee and have worked for your Employer for two years in order to be able to claim. There are some very restricted exceptions to this rule, more information about these exceptions can be found on our website at https://lincslaw.co.uk/blog/unfairly-dismissed-less-than-two-years-service/
Please also note that this blog is intended to consider whether a redundancy was an Unfair Dismissal only. There may be other claims (discrimination, whistleblowing etc) which may also be relevant to your situation.
What Will The Employment Tribunal Consider?
In a claim for Unfair Dismissal, the Employer will have to demonstrate that the dismissal (redundancy) was fair in all the circumstances. In considering this the Employment Tribunal will look at:
Whether there was a genuine redundancy situation?
Redundancy is about a reduced need for the work to be done, not whether a job title disappears. Employees have been found to have been unfairly dismissed where:
- The role is simply renamed, not actually removed;
- Work done by the redundant employee continues unchanged; and
- A replacement is being or has been hired (sometimes in anticipation of the employee being dismissed).
Whether there was a genuine consultation?
This tends to be an issue when the Employer has decided in advance who will be made redundant and then skips or rushes consultation because they consider the outcome is “inevitable”. Failure to consult about the pool, selection criteria and scoring (see below) can make the dismissal unfair, even if redundancy was unavoidable.
Employees have been found to have been unfairly dismissed where:
- The decision was already made prior to consultation being started;
- Consultation only started after notice of termination was given; and,
- The Employer did not even consider any suggestions or alternatives to redundancy suggested by the Employee.
Whether the correct pool of employees has been identified?
This is often a real issue in redundancy. Employers decide to identify one person for redundancy without considering whether others who do similar work or who have a overlap in responsibility should also be in the pool. The Employment Tribunal will question whether the pool was reasonable (and not just convenient).
Employees have been found to have been unfairly dismissed where the Employer decides not to have a pool at all and just target one person. It may appear to the Employment Tribunal that an Employee was targeted and then a redundancy process was “reverse engineered” to make them redundant (as opposed to any genuine need to reduce staff numbers).
Whether the method of selection was fair?
This is a problem where an Employer uses a subjective (or even illogical) selection criteria and a biased system of scoring to choose the Employee they want for redundancy. In a redundancy process, Employers should use objective, fair, and transparent criteria and apply them consistently.
Employees have been found to have been unfairly dismissed where the Employer:
- Used opinion based subjective criteria and gave marks for “attitude”, “flexibility”, “commitment” etc;
- Collated and or retained no objective evidence for their scoring; and,
- Manipulated scores to fit their preferred outcome.
Whether alternative employment was considered?
An Employer has an obligation to avoid compulsory redundancies. Therefore, a fair process should actively consider whether the Employee could be offered another position. Employers must take positive steps to identify and offer suitable alternative roles.
Employees have been found to have been unfairly dismissed where the Employer:
- Did not share vacancies (deliberately or inadvertently);
- Decided the Employee was “not suitable” or they “wouldn’t want the job” unilaterally without discussing the position with them; and,
- Did not consider training or trial periods for vacant positions.
In all of the above, failing to consider alternative employment (and to continue that consideration up and including the last day of employment) is the most common reason an Employment Tribunal finds an Employee’s redundancy to be unfair.
Employment Tribunal Claims and Time Limits
If you have been made redundant and want to start a claim of Unfair Dismissal at the Employment Tribunal, 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.
Lincs Law Employment Solicitors Can Help You
If you have been made redundant and want hep with an unfair dismissal claim, please contact us for a free, no obligation, enquiry call on 01522 440512. We are happy to help.
Sally Hubbard
Managing Director, Specialist Employment Solicitor
Tags: appeal redundancy dismissal at risk of redundancy employee's redundancy rights employment solicitor employment tribunal claim redundancy lincoln redundancy solicitor redundancy redundancy claim redundancy unfair dismissal sally hubbard
