Q: I’m being made redundant unless I can propose a way to show that my role is still important and financially viable, do I have to put forward a proposal for this?
A: There is no obligation to put forward a proposal, but it may be wise for you to think about what reasons (if any) you could put forward to persuade your employer that your role is not redundant and that your duties cannot be absorbed by other members of the team. Furthermore, you should think about what suitable alternative roles (if any) exist for you within the organisation and the reasons why you would be able to carry out those roles effectively.
Q: What are deemed as ‘suitable’ alternative roles?
A: First of all, it is important to note that the dismissal of an employee for redundancy may be unfair if the employer fails to make a reasonable search for suitable alternative employment, and this should not be confused with thinking that the employer has an obligation to offer alternative employment following a redundancy.
It is also important to note that a claim for unfair dismissal (for example following a redundancy where the employer fails to make a reasonable search for suitable alternative roles for the employee) will only be possible if certain criteria are met, which includes having 2 years continuous employment with the employer at the date of termination of the employment contract.
Furthermore, where suitable alternative employment is offered following redundancy, it should be subject to a trial period if the terms of the new employment differ in any respect from the employee’s existing terms. The trial period gives the employer the opportunity to try out the employee in the new alternative employment and gives the employee the opportunity to try out the new employment (this is usually within a statutory four-week trial period). If the trial period is unsuccessful, the employee shall be regarded as dismissed, for statutory redundancy pay purposes, at the date when the original contract ended. However, the time limit (which is 6 months) for claiming any redundancy payment runs from the date of the termination of the trial period, not from the date of the dismissal/original redundancy. This means that you would only need to claim redundancy payment if your employer refused to pay it or paid less then owed under statute/employment contract.
The test for whether the alternative employment is suitable is as follows; in making an objective assessment of the suitability of alternative employment offered by an employer, a tribunal must have regard to:
- The employee’s skills, aptitudes and experience and whether they meet the requirements of the job on offer.
- The terms of the alternative job (for example, status, place of work, tasks to be performed, pay, hours and responsibility) and how they compare with the terms of the employee’s previous employment.
It is for the tribunal to carry out the objective test above to decide whether it is suitable for the employee.
Q: Would my pay be the same if my employer found a suitable alternative role?
A: With regards to pay and fringe benefits of the job, the difference between the pay of the previous job and the alternative will not in itself decide whether the alternative is suitable, however a significant drop in pay compared to the previous job is likely to make the alternative unsuitable. It is important to note that if you were to reject an offer of alternative employment that is seen as suitable by the employment tribunal, then you would forfeit your right to a redundancy payment. If you are all unsure of whether a tribunal would see an offer as fair or not, you should check with a specialist employment law solicitor as soon as possible.
Q: What do I need for a tribunal and is it worth it?
A: If the role is genuinely redundant then there is not a claim for unfair dismissal, but in any case you should always make sure that you receive the correct amount of redundancy payment (this may be a statutory redundancy payment or you may be entitled to a further redundancy payment under your employment contract).
If you feel that your employer has not carried out a reasonable search for suitable alternative employment then you may also have a claim in the employment tribunal for unfair dismissal (again subject to the ordinary requirements for an unfair dismissal claim which include having 2 years services with the employer at the date of termination of employment).
In terms of whether it is worth going to tribunal, it is useful to know that before bringing a tribunal claim for unfair dismissal or redundancy payment you would have to first go through ACAS early conciliation. This means that ACAS try to broker a settlement between you and your employer to avoid going to the tribunal. It is only if ACAS cannot help you and your employer does not settle that they then issue a certificate allowing you to bring the claim in the tribunal.
Furthermore, you should also consider that you will have to pay tribunal fees and legal fees which are unrecoverable usually, even if a claim is successful in the tribunal. The tribunal fees for a redundancy payment claim are an issue fee of £160 and a hearing fee of £230. The tribunal fees for an unfair dismissal claim are a £250 issue fee and a £950 hearing fee.
Q: Am I entitled to ask for garden leave?
A: There is no implied right to garden leave as such, and so whether you can ask for garden leave depends upon your Employment contract.
Q: Would I be entitled to help with retraining costs?
A: The trial period for the alternative employment as referred to above can be extended if retraining of the employee is needed.
Q: Am I entitled to ask for time off to find new work and to attend interviews?
A: Yes, you are entitled to reasonable paid time off but there are certain pay limits.
Expert redundancy advice
We hope that the above information is helpful to you if you have just found out that you are being made redundant. In almost all cases it is worthwhile for employees to at the very least have a telephone conversation with a specialist employment law solicitor, so that the circumstances of the redundancy can be properly reviewed to set employees’ minds at rest about whether or not the redundancy and the processes surrounding it are legal.
To speak with our team of corporate and employment law solicitors call: