There have been many changes to employment law and regulations in the last few years. A key area is the freedom or lack of freedom to make an individual redundant.

An employee’s employment can be terminated at any time but unless the redundancy is fair an Employment Tribunal may find the employer guilty of unfair dismissal.

We set out below the main principles involved concerning the redundancy of employees. We have written this factsheet in an accessible and understandable way but some of the issues may be very complicated.

Professional advice should be sought before any action is taken.

What is Redundancy?

Under the Employment Rights Act 1996, redundancy arises when employees are dismissed because:

• the employer has ceased, or intends to cease to carry on the business for the purposes of which the employee was so employed or
• the employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed or
• the requirements of the business for employees to carry out work of a particular kind has ceased or diminished or are expected to cease or diminish or
• the requirements of the business for the employees to carry out work of a particular kind, in the place where they were so employed, has ceased or diminished or are expected to cease or diminish.

In other words, the business reasons for redundancy do not relate to an individual but to a position(s) within the business.

Consultation - Legal Requirements

Employers who propose to dismiss as redundant 20 or more employees at one establishment have a statutory duty to consult representatives of any recognised independent trade union, or if no trade union is recognised, other elected representatives of the affected employees.

Consultation should begin in good time and must begin:

• at least 30 days before the first dismissal takes effect if 20 to 99 employees are to be made redundant at one establishment over a period of 90 days or less
• at least 90 days before the first dismissal takes effect if 100 or more employees are to be made redundant at one establishment over a period of 90 days or less.

Employers also have a statutory duty to notify the Department of Trade and Industry if they propose to make 20 or more workers redundant at one establishment over a period of 90 days or less.

If an employer fails to consult, a Tribunal has discretion to make a protective award of up to 90 days pay.

It is good practice in all organisations however, regardless of size and number of employees to be dismissed, for employers to consult with employees or their elected representatives at an early enough stage to allow discussion as to whether the proposed redundancies are necessary at all. Then they should ensure that individuals are made aware of the contents of any agreed procedures and of the opportunities available for consultation and for making representations. It must be remembered that redundancy is a form of dismissal and therefore all employers must follow a disciplinary and dismissal procedure which satisfies the requirements of the Dispute Resolution Regulations 2004, namely to include a letter setting out the reasons for the potential redundancy, a meeting and an appeal process.

Disclosure of Information

• the reasons for the proposals
• the number and descriptions of employees it is proposed to dismiss as redundant
• the total number of employees of any such description employed at the office in question
• the way in which employees will be selected for redundancy
• how the dismissals will be carried out and over what timescale
• the method of calculating the amount of redundancy payments (other than statutory redundancy pay) to be made.

To ensure that employees are not unfairly selected for redundancy, the selection criteria should be objective, fair and consistent. They should be agreed with employee representatives and an appeals procedure should be established.

Examples of such criteria include last in first out (LIFO), attendance record, experience and capability. The chosen criteria should be measurable and consistently applied. Non-compulsory selection criteria include voluntary redundancy and early retirement, although it is sensible to agree management’s right to decide whether or not such an application is accepted or not.

Employers should also consider whether employees likely to be affected by redundancy could be offered suitable alternative work within the organisation or any associate company.

Employees who are under notice of redundancy and have been continuously employed for more than two years, qualify for a reasonable amount of paid time off to look for another job or to arrange training.

Unfair Selection for Redundancy

An employee will be deemed to have been unfairly selected for redundancy for the following reasons:

• participation in trade union activities
• carrying out duties as an employee representative for purposes of consultation on redundancies
• taking part in an election of an employee representative
• taking action on health and safety grounds as a designated or recognised health and safety representative
• asserting a statutory employment right
• by reasons of discrimination
• maternity-related grounds.

The Right to a Redundancy Payment

Employees who have at least two years’ continuous service over the age of 18 and under the age of 65 (unless the agreed normal retiring age is less than 65) qualify for a redundancy payment.

The entitlement is as follows:

• For each complete year of service until the age of 21 - half a week’s pay
• For each complete year of service between the ages of 22 and 40 inclusive - one week’s pay
• For each complete year of service over the age of 41 - one and a half weeks’ pay.

A week’s pay is that to which the employee is entitled under his or her terms of contract as at the date the employer gives minimum notice to the employee. The maximum statutory limit for a week’s pay is £310 with effect from 1 February 2007 and the maximum statutory payment is 30 weeks pay or £9,300. This figure is reviewed annually and employers may, of course, pay in excess of the statutory minimum.

The employee is also entitled to a period of notice or payment in lieu of notice by statute and their contract of employment.

How We Can Help

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