Challenging redundancy dismissals

It is very difficult to challenge the scores, selection pool or overall selection process used by an employer to carry out redundancies. A tribunal will not engage in close scrutiny of the procedure used to decide on the redundancies. A challenge is unlikely to succeed as long as:

• the process is broadly fair;

• each employee gets a proper chance to challenge their selection;

• there is no evidence of discrimination or selection for an automatically unfair reason; and

• there is no credible evidence of bias or significant factual error (for example, making a decision based on a wrongly calculated absence record).

“Good faith assessments by an employer of an employee’s qualities are not normally liable to be second-guessed by an employment tribunal” (Inchcape Retail Limited v Symonds [2009] UKEAT 0316/09/0312).

An employee wanting to challenge a redundancy dismissal should focus their challenge on any clear evidence of concrete disadvantage suffered as a result of an employer’s decision to carry out the selection process in a particular way. The strongest cases are those that suggest that if the consultation had been carried out correctly, there is a good chance that the person may not have been selected at all.

Employees should participate as fully as possible in the consultation process and keep a careful chronological record backed up by supporting emails. An employee intending to bring a tribunal claim should keep searching for work and keep all the evidence of their job search, including copies of all job applications (and a record of all online applications) to show the tribunal.

If an employee succeeds in a case of unfair dismissal, any statutory redundancy payment will be offset against the basic award (i.e. they will receive only one or the other). Any contractual redundancy payment over the statutory minimum sum, will be offset against the compensatory award (Digital Equipment v Clements [1998] IRLR 134).

If a tribunal concludes that an employee would have been dismissed for redundancy even if the employer had consulted properly, a tribunal is likely to cut the amount of the compensatory (but not the basic) award, so as to cover only the wages that would have been earned during a fair consultation. By contrast, if the tribunal decides that acting fairly, the redundancy could have been avoided, a higher award of compensation becomes possible, based on the employee’s net lost earnings for a period (See Chapter 10: Dismissal — Compensation).

In Stroud Rugby Football Club v Monkman [2013] UKEAT/0143/13/SM/2110, a bar worker was summarily dismissed for redundancy after 25 years’ service and her role was shared between volunteers and a paid casual worker. There was a genuine redundancy situation but the dismissal was unfair because of a complete failure to consult. The tribunal awarded a share of three years of lost earnings, based on the probability that if proper consultation had been carried out, the claimant would have carried on working in a job share arrangement with the casual worker, rather than losing her job altogether.

An employee who brings a tribunal claim for statutory redundancy pay is deemed to have been dismissed on grounds of redundancy and there will be no opportunity to challenge the reason for dismissal. Anyone wanting to argue that the reason for dismissal was not redundancy, or that the redundancy decision was unfair, should claim compensation for unfair dismissal.