Redundancy

Enhanced maternity protection under reg. 10 of the Maternity and Parental Leave etc. Regulations 1999 does not apply when no actual vacancy exists.

The Court of Appeal holds that employers do not have to conduct general workforce consultation for an individual redundancy dismissal to be fair. It overturns the EAT decision which suggested that consulting employees individually is not sufficient, even if collective consultation obligations do not apply.

Consulting with staff on redundancy pools is essential, especially where a pool of one is concerned.

An employee made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer hadn’t considered furloughing her as an alternative to redundancy.

An employer acted unfairly when it did not consult on redundancy selection criteria, where the sole selection criteria inevitably led to a redundancy pool of one.

An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.

An employee’s dismissal for redundancy was unfair, in part because the employer hadn’t considered continuing her employment on furlough. If a genuine consultation had taken place which considered furlough and the available project work, she may not have been made redundant.

Compulsory liquidation is not a ‘special circumstance’ allowing an employer to escape liability for a failure collectively to consult before making redundancies.

The dismissal of an employee for redundancy, despite the existence of the furlough scheme, did not make his dismissal unfair.

In deciding whether an entitlement to a redundancy payment is lost by the refusal of an offer of suitable alternative work, it’s important to consider the practical effects of any differences between the old role and the new role.

In a collective redundancy situation, if the threshold number of dismissals is reached at any point across the 30- or 90-day period, consultation obligations apply in respect of those dismissals - and dismissals that occur before or after the given dismissal count towards the threshold.

An employer had not acted unreasonably by failing to place a redundant employee on a list of workers whose services could be called on if required – because doing so would not have avoided the redundancy.

Although an employer can take a ‘forward thinking’ approach using a competitive interview process when considering redundant employees for alternative employment, especially where the role is at a high level and involves a promotion, in this case, where the employees were not consulted with and were essentially applying for their own jobs, rather than applying a scoring matrix, this rendered their dismissals unfair.

Whether notification that a role was being deleted amounted to a communication that the contract was being terminated on that date had to be determined in light of the wider context and all the facts of the particular case.

Statutory redundancy pay doesn’t count towards the £25,000 cap on contractual claims in the employment tribunal as it is a separate cause of action – one is contractual and subject to a £25,000 cap and the other is statutory which is not subject to the cap.

On the question of the mistaken failure to offer of a trial period in a redundancy situation, it is important to consider first of all whether this failure rendered the dismissal unfair, and then whether a trial period would have made a difference to the outcome. Neither is it an answer, when the employer has clearly admitted being at fault, to say that because the claimant did not press the point, this somehow affects the reasonableness.

An employer’s failure, in a redundancy situation, to consider the ‘bumping’ dismissal of a more junior employee to make way for a more senior employee may, or may not, make the dismissal of the senior employee unfair, depending upon the circumstances.

A charity breached its collective redundancy consultation obligations when it failed to start consultation ‘promptly’.

An employer who promised employees the right to apply for voluntary redundancy breached their contracts by instead making them compulsorily redundant.

Charlesworth v Dransfields Engineering Services

While an employee’s absence for cancer treatment was the context for his employer deciding to make his role redundant, it was not the cause of his dismissal – and therefore didn’t amount to discrimination because of something arising in consequence of his disability.