Unfair dismissal and redundancy

In some circumstances a redundancy dismissal will be unfair, entitling the employee to bring a claim for unfair dismissal.

A redundancy dismissal will be automatically unfair under section 105 of the ERA 96 if the reason (or, if more than one, the main reason) for selection was one of the following:

• a union-related reason (including union recognition);

• participating in protected (i.e. official) industrial action;

• a health and safety reason;

• asserting a statutory right (for example, the right to take a rest break);

• taking or requesting leave for family reasons;

• being a trustee of a pension scheme;

• standing as a candidate for, acting as, or being elected as an employee representative for collective redundancy or TUPE purposes, or as a rep under the ICE regulations or of a European Works Council;

• refusing to work on a Sunday (if the employee is a protected shop- or betting shop worker — see Chapter 4);

• asserting a right under the Working Time Regulations;

• asserting rights under the National Minimum Wage Regulations;

• making a protected disclosure (whistleblowing);

• asserting rights under the Tax Credits Act 2002;

• asserting a right protected by the Part-time Workers Regulations 2002;

• asserting a right protected by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;

• asserting a right to request flexible working;

• asserting a right to request time off to study and train;

• a reason related to a prohibited list (a “blacklist”) under the Employment Relations Act 1999 (Blacklists) Regulations 2010;

• asserting a right under the European Public Limited-Liability Company Regulations 2009;

• a reason related to pension auto-enrolment;

• being absent on jury service;

• pregnancy, maternity leave or childbirth; and

• agreeing, or refusing to agree to accept a contract for employee shareholder status.

There is no need for service to claim unfair dismissal where redundancy relates to one of the reasons listed above. Instead, the right is available from day one.

A redundancy dismissal will also be automatically unfair if it relates to a spent conviction (except for occupations covered by the Exceptions Order — see Chapter 3), or is because of a TUPE transfer where there is no valid economic, technical or organisational reason (see Chapter 12). In both cases, two years’ service is needed for a tribunal claim.

There are various ways in which a redundancy can also be unfair under the general law of unfair dismissal (see Chapter 10), in particular:

• if redundancy was not the real reason but some other reason, such as capability;

• if the employer acted unreasonably when selecting a particular employee for redundancy;

• if there was inadequate consultation; or

• if there was a failure to offer alternative employment.

Two years’ service is needed, unless the employee is selected for a reason connected to political opinion (see page 297).

No service is needed to challenge a discriminatory redundancy dismissal (see Chapter 6: Discrimination).