Unfair dismissal and redundancy

There are circumstances in which redundancy is unfair and the employee can 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 request flexible working);

• 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 employer is a shop or betting shop worker);

• asserting a right under the Working Time Regulations;

• asserting rights under the National Minimum Wage Regulations;

• making a protected disclosure (whistle-blowing);

• 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; and

• being absent on jury service.

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

A redundancy may be unfair if there is no genuine redundancy situation and there is no other fair reason for dismissal. It may also be unfair because it is unreasonable in the circumstances. This could be because there was poor (or no) consultation, an unfair selection procedure or a failure to offer alternative employment. In these cases, employees must have at least two years’ service. This increased from one year on 6 April 2012 (see Chapter 10: Dismissal).