The number one sin that many employers commit when dismissing employees is to decide to get rid of a particular employee, and then to retrospectively justify the decision by calling it ‘redundancy’. Having said that, it can sometimes be difficult for the employee to prove that is what occurred. In these cases it a disciplinary hearing solicitor consultant will look for other signs of an unfair redundancy procedure.

Often, in a team of two or more, the employer will put all positions at risk of redundancy but then create the same number of new positions. In this case, a careful analysis of the old and new job descriptions will be required. Some employers will only make superficial changes to the job title and some aspects of the role. In this case the employee may be able to argue that there are no substantive changes to his or her existing role, and that therefore the statutory definition of redundancy is not satisfied. Our disciplinary support and advice services can spot these instances and challenge them using the appropriate channels.

There are several approaches to constructing a pool of employees from whom redundancies will be selected. Sometimes the pool will be everyone in a particular department. Sometimes it will be everyone with the same job title. Sometimes it will be everyone performing a particular function. However, if only one person has been put at risk of redundancy, then this will usually raise concern that something is not right. There may be legitimate reasons to do so (for example if the manager of a team is being put at risk to flatten the management structure), but often this suggests prejudging the situation and dismissing employees unfairly.

Alternatively, the employer will say that they have already scored the members of the team but will only put the employees with the lowest scores ‘at risk’. Again, this may suggest prejudgment of the outcome of a fair redundancy selection exercise. Employers should consult on the proposed redundancy selection criteria before applying them to avoid dismissing employees unfairly.

As mentioned above, employers should consult with affected staff on the proposed redundancy selection criteria before applying them, but not all do. This can lead to them dismissing employees unfairly and unlawfully. For example, employers often rely on vague and woolly selection criteria, such as ‘ability to adapt’ without any objective justification for their score. Some scores are at complete odds to the annual appraisals of the employees at risk.

Alternatively, employers will rely on objective criteria such as sales figures, but will then choose a period which skews the results against the person they don’t want to keep. Sometimes, employers won’t compare like for like; for example, comparing the sickness absence record of one person with three years’ service against another with only 6 months’ service (who inevitably will have had less sick leave). This ofers another case for dismissing employees in an unlawful way.

Instead of using a selection criteria scorecard approach, some employers will interview at risk employees for the remaining positions. Employers should ensure that they ask the same questions of all candidates and keep a record of the answers. Again, this is an ideal opportunity to score-down the person they want to get rid of. However, if the matter gets to a Tribunal, they will have to disclose the interview score notes for each candidate and explain their results to a Judge, who may determine they acted unfairly in dismissing employees.

Some employers take the view that consultation is only about looking at alternative vacancies within the organisation. This is not the case; consultation should normally include discussion of why the redundancies have arisen, any possible alternatives to redundancy, and redundancy selection criteria as well. Employers are not obliged to ring fence vacancies for only those at risk, but equally should not exclude employees from applying for relevant positions.