Redundancy selection

This article is based on a selection of questions that employees often ask us about whether or not their selection for redundancy is fair.  It’s one of several about different aspects of redundancy on our website.

The employees asking us the questions each gives us a brief insight into their employment situation. The answers are provided by one of our specialist redundancy lawyers.

From this exchange, you can assess to what extent their circumstances apply to your own and make a judgement about whether your own redundancy selection appears to be fair or not. 

Most importantly,  the Q&As should help you decide what if anything you can do about your redundancy situation. 

Where a word or phrase is highlighted, you can click on it to view a related article on our website.  

For further information, see our other related guides about aspects of redundancy which are listed at the end, including Is my redundancy fair? and Sham redundancies If you want to learn more about redundancy generally, you might find our main Redundancy guide particularly helpful. 

Is my redundancy selection process fair?

‘I am going through a consultation process with my employer.  I’ve been there 11 years and they need to make 10% of the workforce redundant. They tell me they’re making my position redundant and that it’s nothing personal.  They tell me I’m a good employee with a proven track record, good achievements and results.

I have put it to them that my work is still available and feel they haven’t given me a fair reason for getting rid of me. Some other people are in a points process against other people in their department doing the same job. Should I try negotiating a better package or do I stand little chance?

Thanks’

Employment lawyer’s answer

It is difficult to prove that the process itself is unfair (rather than the way the process is implemented). You would need to show that there are other people doing your job who haven’t been considered for redundancy, therefore you should be in a points assessment with them.

Also remember that you can apply for alternative employment in the same company.

If you ask the right questions in this way, you may be able to negotiate a better deal. 

I think I’m being unfairly selected for redundancy: what should I do?

‘I have been told that the job I perform is at risk of redundancy as the company is shifting part of my workload (around 40%) to another location where it’s said by the management and HR to be close to our major clients. The company plans to assign the rest of my workload to other colleagues after my redundancy. I was not given details about who will take over all my responsibilities as a result of my redundancy.

I do not accept the reasons given by the company for my redundancy because I feel that the company is unfair in selecting me and is breaching my employment contract by redefining, narrowing responsibilities agreed for my role.

I am raising a grievance against my company. Please advise. I was told that, as a big firm, the company I am working for hires top lawyers. Should I be worried?’

Employment lawyer’s answer

It can be difficult to prove unfair selection for redundancy, especially as the company often keeps its cards close to its chest, for example in terms of who to redistribute your work to. So you are right to try the grievance route first, to try to get some answers.

You shouldn’t be worried because you have nothing to lose – you are already being made redundant.

 

Unfairly selected for redundancy? Monaco Solicitors can help you.

Can I be made redundant if my contract is different from the redundant role? 

‘I have been told that the job I perform is at risk of redundancy as they are closing the department. However, the job on my contract is different from the one they are saying is at risk of redundancy.

This year they employed another person who has the same contract as me and they have decided to keep this department open. At the beginning of the year I was asked to cover this role and as I’m a flexible worker was happy to assist. Can the company I work for legally make me redundant for a role I was performing but is not on my contract?’

Employment lawyer’s answer

In a nutshell yes, they can do this, because in this case, it’s not what is in your contract which matters, it’s what you are doing in practice. However, if you can prove that they deliberately moved you to the new role just so they could make you redundant then you’d have a good claim for constructive dismissal.

Do get in touch if you’d like to know if we could help you negotiate a settlement agreement. 

Why should I be made redundant but not similar colleagues? 

‘I am being told that they are making me redundant as my role is a discrete role although there are 9 other people with the same title and role.  In what context can a discrete role be used?’

Employment lawyer’s answer

All 9 of you should be put into a ‘pool’ and assessed together. Try asking for the criteria used. You should appeal the decision and also issue a formal grievance. At the same time if there is no chance of keeping your job, try writing a ‘without prejudice’ letter to suggest a fair amount of compensation.

 

Is my redundancy selection fair following whistleblowing and depression?

‘I had made a couple of serious allegations to the board about the MDs behaviour. 

Firstly he was involved in a large scale theft from the company and was ignoring the security team’s advice to put protection in place. Secondly, he was using a company vehicle for sole use without paying tax.

For both, I was told that the company were unaware and would take it seriously.  They later thanked me for raising it, told me that they would keep an eye on it and asked me to let them know if anything else happened. No more was ever done about either of the matters.

About a month ago, I met my boss to discuss my increasing ill-health depression. After discussing my depression, communication was via email only and a lot briefer and more ‘to the point’ than ever before. 

Indeed one day, (when I was in tears after feeling threatened by the MD and waiting for a meeting with my manager) the MD came into the room and said to me, “I don’t know what is wrong with you. You need to relax, no one wants to talk to you with a face like that. Just let it go and cheer up for god’s sake”.

Then I was made redundant but have heard from a colleague (who was a temp) that she has been asked to step up into my post and has been offered a pay rise. I have raised a grievance which was dismissed. I am about to contact Acas. Can you please confirm, how strong is my case? I am struggling to know whether others would see it as I do, or whether it is just due to my depression that I see this as being so wrong. Thank you.’

Employment lawyer’s answer

It sounds like you have suffered victimisation due to whistleblowing and also possibly due to disability too. Is your depression likely to last for over 12 months? If it is, it would be counted as a disability. With whistleblowing and discrimination cases, it is difficult to obtain evidence. You would need either witnesses to come forward to support you and/or relevant emails. It may be easier however to show how you have been made redundant and then replaced by someone else who is doing your job role.

At the same time, the employer may not want their dirty laundry to be aired in public. We would suggest that you try to settle this matter out of court. You may find that instructing lawyers to help with this could be a good option, because not only does it take the stress away from you, but also they would know what to say, and how to say it. This is often the catalyst for a settlement and a settlement agreement.

 

Can I be made redundant after requesting a location change and flexible working? 

‘2 months prior to my return to work after maternity leave, my company agreed to a change in location from location A to location B. I received an automated email stating that my location had been changed. I then made a formal request for flexible working, so that I could work some days from home to care for my mother.

I was then told that I am in a redundancy pool as the site at location A is closing and all employees based there will be made redundant or they can apply for jobs in location B. But as I work at location B, then surely I could not be in this pool. I was then told that the change to my location was a mistake and that I officially still ‘work’ at location A and am in the pool still.

I have since found out that they have been interviewing for my position – at the exact grade I am, and in location B where I currently work. When I asked about this, I was told that the jobs weren’t at the right grade and that they’d be unsuitable for me as I wanted to work from home and also I probably wouldn’t want to do on-call work and overtime. I have since been told that I may be able to apply for another role elsewhere in the company.

I feel that I am being made redundant because I have requested flexible working. They are hiding behind the fact that my location change was a mistake, but I was never informed of this until I asked about it in the redundancy meeting. I am the only female in location B. I shouldn’t have to apply for a role that isn’t really suitable for me. I feel I am being discriminated against because I’ve got a family and because I’ve asked them to be flexible so I can help care for my mother. What should I do next? Thanks’

Employment lawyer’s answer

This is where a useful first step would be for you to submit a discrimination questionnaire to your employers.  It sounds as though you have a potential discrimination claim here which you could either pursue further, or you could decide that you want to leave your employment with a negotiated settlement agreement and financial payout.  Have a look at the articles on our website about discrimination, which give further information and practical advice when you’re being discriminated against.

Next steps

If you think you are or have recently been unfairly selected for redundancy, get in touch with us at Monaco Solicitors.  Our experienced team of employment lawyers between them have years of experience of successfully representing employees in cases of unfair redundancy. Our terms are highly competitive and flexible to suit your particular circumstances.

Contact us via this link, by phone on  020 7717 5259, or email: [email protected]

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