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Being made redundant: Can I be replaced by someone else?

This blog draws from a selection of questions that we often get asked by employees about whether and when you can be replaced by someone else when you are being made redundant. It is one of a small selection on our website about aspects of redundancy

The questions are a bit more interesting than usual: with each one you get a brief overview of the employee’s situation, so you can also see to what extent the employee’s circumstances and employment case relate to your own. 

Where a word or phrase is highlighted, you can click on it to view a related article on our website. We suggest that you read through the blog first, then go back and review the linked articles that you’re most interested in.  

For further information, see our other related blogs,  guides, and legal letter templates about aspects of redundancy which are listed at the end of this blog.  

 

Can I be made redundant and replaced with an apprentice?

After recently being made redundant as a Centre Lathe Turner in heavy engineering it has been brought to my attention that, from the very first day I left, an apprentice has been filling my old position every day.  To me this says my position was not under threat but that I was made redundant because apprentices are lower paid (government sponsored) and unskilled. Could you clarify please?

Employment lawyer’s answer:

Unfortunately, employers are allowed to make an employee redundant  and then hire someone to do the job for lower pay. This would include an apprentice carrying out the role after the previous employee was made redundant. However, they should have offered this role (and the pay) to you before hiring the new person. If they didn’t do that (therefore didn’t offer you ‘alternative employment’) then you may have a claim for unfair dismissal.

Can my employer advertise for my replacement while I’m still employed?

I was asked two weeks ago if  I would take voluntary redundancy.. My employer said he would give me till we met 3 days later for my decision. He offered me a package of 12 weeks’ pay and a very good reference. That then changed when we met. He then said that because I had made a few mistakes in my work, if I wanted to I could have a final warning and come back to work, but if I made another mistake, I would go with nothing.

I admit he had spoken to me about this a couple of times,but I have never had a written warning.  Should that come before a final? For the last 6 days he is also now advertising my job as an apprenticeship. Can he do this when I have not officially left yet?

Employment lawyer’s answer:

As a rule you should get a normal warning before you get a final warning, unless your conduct is so bad that it warrants an instant final warning.

However, advertising your job is tantamount to constructive dismissal, if you can prove that it is in fact your job which they are advertising. So long as you’ve been employed with the same company for over 2 years, you may be able to make a tribunal claim for this.  Alternatively,  a good specialist employment lawyer would probably be able to negotiate a fair exit package for you.

I am being made redundant and the workload shared out – is this legal?

I’m currently in a consultation period  with my employer regarding proposed redundancy for my role.  The reasons for the redundancy are given as cost-cutting and that my department has been reviewed and the employer feels only two people are needed (those two roles which would remain are my junior reports).

The proposal is to share out my workload amongst others in the business who have been identified as having spare capacity, not just those in my team. I am seeking to establish if this is a genuine reason for the redundancy because the work I do is still required and is still available for me to do, but my employer is saying they don’t need my role to carry out the work, as they feel my role is not essential.

My employer has invited me to submit alternatives to the proposed redundancy of my role which I have done, and which are now being considered. I understand that should I wish to query the genuineness of the proposed redundancy it would be prudent to do so before the consultation ends and before my employer makes a final decision.

Employment lawyer’s answer:

It is legally acceptable for your employer to share out the duties of an employee to other employees within the business. They are at liberty to reorganise their existing workload in this way even though your job itself is not being made redundant exactly. They can even give the same role to someone else on lower pay, believe it or not!

However, it is not necessarily just you who should be considered for redundancy. Have they considered sharing out other peoples’ work to you?  Is there anyone else who does your type of work, who also should be considered? These are questions which you should ask within the consultation process. Of course they may find it easier to offer you a settlement agreement, which would be better for you than nothing (although not necessarily as good as having a job). 

 

I was made redundant, then my role was given to someone else: is that allowed?

I’ve been made redundant.  However before we were given our notices a person was employed in our global office and I have now been told that she had applied for my role.

I just want out anyway but am expected now to train her. They want me to sign a settlement agreement and tie me down to 4 weeks notice plus an additional 2 weeks (a total of 6 weeks). Where do I stand?

Employment lawyer’s answer:

This looks like a sham redundancy. If they have given your role to someone else then it is not a redundant role.  It appears to be unfair dismissal and in that case you should be entitled to a better deal. Only 2 additional weeks’ money is too little – it should be a number of months. Try our settlement calculator on this website, and aim for something along those lines.

 

For further information about the issues raised above, see our related guides and letter templates below.  If you would like to consult a specialist employment lawyer about your case, click here to  request a free consultation.

 

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