Reorganisation or change in duties 


Whether a reorganisation or change of duties results in a redundancy depends on the kind of work the employee was required to do before and after, and the extent of the change in the role. The test is always whether the statutory definition set out at the start of this chapter (section 139, ERA 96) has been met. For example:


The dismissal of direct employees and their replacement with individuals who are not directly employed by the employer (for example, agency workers, or the same individuals but engaged through a payroll or “umbrella” company, or as franchisees) is likely to be a redundancy situation, even if the replacement workers are taken on to do exactly the same amount of work as the dismissed employees (Bromby & Hoare Limited v Evans [1972] ICR113; Hodgkins v CJB Development Limited [1984] EAT/948/83). This is because the statutory test in section 139, ERA 96 is based on a reduction in the employer’s need for “employees” (not “individuals”), to do work of a particular kind. 


The employer does not have to point to an economic justification for making redundancies, or show that financial problems have led to the decline in work. Indeed, there can still be a redundancy where a successful employer with plenty of work decides to reorganise (Kingswell and others v Elizabeth Bradley Designs [2003] UKEAT 0661/02/1902). 


Although a tribunal will not second-guess a business decision that redundancies are needed, it will still want to see good evidence of that business case, to make sure redundancy is the true reason for the dismissal and not some hidden reason, such as capability or trade union victimisation.


The law also permits a practice known as “bumping”. This is what happens when an employee whose own role becomes redundant is offered another employee’s job, resulting in that person’s dismissal. The reason for the dismissal will be redundancy even though the dismissed employee’s role still exists and is filled by someone else. This is because the reason for the dismissal is that the employer’s requirement for employees to carry out work of a particular kind has diminished. Whether or not the dismissal is fair is a different issue. 


Failing to consider bumping can sometimes make a dismissal unfair (Lionel Leventhal v North [2004] UKEAT 0265/04/2710). There is no obligation always to consider bumping. The test is whether bumping would have been within the band of responses of a reasonable employer (see Chapter 10) in the circumstances of the dismissal (Samuels v University of Creative Arts [2012] EWCA Civ 1152). 


Agency workers have no right to protection from redundancy. It is not a breach of the Agency Workers Directive to remove an agency worker from their post and for their role to be offered to a direct employee of the end user who is at risk of redundancy. The Agency Worker Regulations 2010 require the end user to inform the agency worker of a vacancy, but do not entitle the agency worker to compete for that role with a permanent worker whose role is at risk (Cole v Ministry of Defence [2015] UKEAT/0403/14/RN). For more information on the rights of agency workers, see Chapter 2.