Challenging redundancy dismissals

It is very difficult to challenge the scores awarded by an employer in a redundancy selection programme. The tribunal will never engage in close scrutiny of scores, and as long as the employer has used a fair process, in which each individual employee has been given the opportunity to challenge their selection, then in the absence of discrimination, bias or factual error (for example, making a decision based on a wrongly calculated absence record) a challenge is unlikely to succeed. “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 UKEAT/0316/09). It is also very difficult to challenge the employer’s decision on the selection pool, as long as the employer can show that it applied its mind to the issue.

An employee wanting to challenge a redundancy dismissal should highlight 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 can suggest that if the consultation had been carried out correctly, that person may not have been selected at all.

Employees stand a better chance of succeeding in the tribunal if they can show they engaged proactively in the consultation process and the search for alternative employment. If an employee is willing to accept jobs at a lower grade or reduced hours, they should spell this out during the consultation process, keeping a careful chronological record backed up by supporting emails. An employee intending to bring a claim in the employment tribunal should keep searching for work and keep a careful record of the 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, will be offset against the compensatory award (Digital Equipment v Clements [1998] IRLR 134). See Chapter 10: Dismissal — Compensation).

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. An employee 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.