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. A challenge on this basis 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, victimisation, 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 who wants to challenge a redundancy dismissal should focus that challenge on clear evidence of concrete disadvantage. The strongest cases are those in which the evidence suggests that if the consultation had been carried out correctly, there is a good chance that the person would 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. Anyone who intends 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 claim for 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 that exceeds the statutory minimum amount 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 with fair consultation, the compensatory award (which is supposed to compensate for future lost earnings), will be limited to the net wages that would have been earned during that consultation period — usually just a few weeks. By contrast, if the tribunal decides that if the employer had acted fairly, the redundancy could have been avoided altogether, a much higher award of compensation becomes possible, based on the employee’s net lost earnings until they could reasonably be expected to find another job (See Chapter 10: Dismissal — Compensation). Here is an interesting example involving job share arrangements:


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