I think that my redundancy is a sham – what should I do?

Redmans Solicitors
October 12, 2012

If you’ve been informed that you’re going to be made redundant then you’ll be concerned to ensure that the redundancy process that you’re being put through is fair. Although it always isn’t the case redundancy processes can often be “shams” – they’re simply used as a convenient means for employers to dismiss “problem employees” where alternative means would be too burdensome or time-consuming.

What is a redundancy?
How can I spot whether my redundancy is a sham?
What should I do if I think that my redundancy is a sham?

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What is a redundancy?

If your employer is considering making you redundant then they must advance a potentially fair reason for your redundancy. This involves one of the following potential situations:

the employer has ceased or intends to cease carrying on the business for the purposes of which the employee was employed by him; or
the employer has ceased or intends to cease carrying on a business in the place where the employee was employed; or
the requirements of the employer’s business are such that the requirement for employees to carry out the work of the particular kind carried on by the employee have ceased or diminished; or
the requirements of the employer’s business are such that the requirement for employees to carry out work of the particular kind carried on by the employee have ceased or diminished at the place where the employee works.

If one of the above situations genuinely applies then your employer has a strong case for the need to make redundancies. A Tribunal will expect evidence from an employer to demonstrate that one of the above situations apply. However, if your employer can’t demonstrate that one of the above reasons applies then this is evidence that your proposed redundancy is a “sham” and not genuine. It’s recommended that you obtain advice from an unfair dismissal solicitor on this point.

How can I spot whether my redundancy was a sham?

Your employer should advance evidence for the following:

That there is a genuine redundancy situation
That a fair pool of employees has been formed
That a fair selection criteria has been used to select you; and
That you have been offered suitable alternative vacancies, if possible

Your employer must provide evidence that there was a genuine redundancy situation (as above). They should also, in a best case scenario, provide you with anonymized details of the pool of employees that has been drawn up and the scoring criteria is fair and objective. Further, you should be offered alternative vacancies at your employer if they are available. If you have doubts about any of the above then you may have justification for believing that your redundancy is a sham and that your dismiss is unfair.

What should I do if I think my redundancy is a sham?

Consider whether you have a case for unfair dismissal
Consider proposing a compromise agreement
Make a claim for unfair dismissal to the Employment Tribunal

Firstly, you should consider whether you have a viable claim for unfair dismissal. Consult with an unfair dismissal solicitor or obtain advice from a local Citizens Advice Bureau or Law Centre. You must have had more than one years’ continuous employment with your employer to claim for unfair dismissal in the Employment Tribunal (if you started employment prior to April 2012). If you commenced employment in or after April 2012 then you will need two years’ continuous service to make a claim for unfair dismissal. You will also need two years’ continuous service to qualify for a statutory redundancy payment.

Second, consider whether it’s worth proposing entering into a compromise agreement with your employer. This can be an effective means of resolving the dispute without recourse to litigation, which can sometimes be lengthy and stressful. You will need to obtain compromise agreement advice from an independent solicitor.

Finally, if you believe that you have a viable claim for unfair dismissal and attempts to settle the matter have failed you should consider entering your claim for unfair dismissal at the Employment Tribunal on or before the limitation date (3 months less one day from the date you were dismissed).

This post was written by Redmans Solicitors, London employment lawyers.