In this article Chris Hadrill, the partner in the employment team at Redmans, gives his top six tips on questions to ask your employer in a redundancy process
- Is this a genuine redundancy situation?
- How has the ‘pool’ of employees to be made redundant been created by your employer?
- Is your employer following a fair selection process?
- Are there any ways of avoiding making me redundant?
- Are there any suitable alternative positions available in the workplace?
- What kind of redundancy package can I expect?
Is this a genuine redundancy situation?
In most situations, and particularly in times of economic crisis (such as the financial crash in 2008, Brexit, and the pandemic of 2020-21), it might be obvious that there is a redundancy situation: revenues, in such circumstances, will invariable suffer and employers are forced to cut costs in order to keep the business running. One of these cuts might involve reducing the number of employees required in a particular workplace or the business overall.
In some situations, however, it might be entirely fair to you to challenge whether there is in fact a genuine redundancy situation – examples of these types of situation include (but are not limited to) the following:
- Other employees doing the same job are you are not notified that they are at risk of redundancy;
- Where you are aware that although your employer is making you redundant, that your employer is also seeking at the same time to recruit somebody in the same (or a very similar) position; or
- Where you have recently complained about an issue in the workplace (for example, that you are being harassed or discriminated against, or that there has been a breach of health and safety) and you suspect that you are being dismissed because of that complaint rather than because there is a genuine redundancy reason
If you suspect that there is not a genuine redundancy situation then you should challenge your employer about this – we normally recommend that you send your employer an email detailing why you believe that there is not a genuine redundancy situation (as well as detailing any other concerns that you may have). This will be useful to not only challenge the existing redundancy process but also as useful evidence if, in the worst case scenario, you are forced to bring a claim to the Employment Tribunal for unfair dismissal.
You should also be prepared to put questions to your employer during the redundancy process to challenge their narrative for the redundancy and to explore whether there is in fact a genuine redundancy situation. These questions could include:
- Why are you making me redundant?
- Why are you making me redundancy now?
- What is your employer hoping that making you redundant will achieve?
- What will happen to your roles and responsibilities if you are made redundant?
Keep records of any questions that you ask and any responses that you receive.
How has the ‘pool’ of employees to be made redundant been created by your employer?
If your employer’s business is closing, or if they are closing the particular workplace that you work in, the answer to this question may be obvious. However, in most situations it will simply be that your employer is looking to reduce the number of employees that it has on the books – you are, in this circumstance, entitled to know how your employer has selected those employees who are at risk of redundancy, and how your employer has separated those employees from employees who are not being put at risk of redundancy – the employees who have been selected for redundancy is normally known as the ‘pool’ of employees. This pool can sometimes be just of one employee (known as a ‘role redundancy’) if the employer has decided that there is no longer any need for that particular employee’s role, but it can also be a pool of many more employees who are doing the same or similar jobs.
You will, essentially, want to know who created the pool for the redundancy, who is in the redundancy pool (and who therefore is not), and how the decision was made to create the redundancy pool. This information will allow you to make a judgement as to whether the redundancy pool created was correct or not, and whether the redundancy process is therefore fair.
Questions that you may wish to ask your employer about pooling:
- Is your role being made redundant or, alternatively, are there are a number of employees who are performing the same or similar role who are being made redundant?
- Who made the decision as to how the redundancy pool was to be created?
- How was the decision made regarding which employees to place in the redundancy pool and, by exclusion, who was to be left out?
If you have concerns about the redundancy pool then, again, put these concerns to your employer in writing and keep a record – this is particularly the case if you believe that you have incorrectly been placed in the redundancy pool.
Is your employer following a fair selection process?
If there is a genuine redundancy situation and the pool created for the redundancy is fair and reasonable the next issue to consider is whether there has been a fair selection process (in determining who, that has been put at risk of redundancy, is made redundant.
If there is a pool of two or more employees being considered for redundancy then the employer has a legal obligation to create fair and objective scoring criteria and to apply that criteria fairly and reasonably. If your employer fails to do this then any dismissal may be unfair.
If there is a role redundancy (a ‘pool of one’) then it can be a bit more difficult to challenge the selection process, apart from to argue that it was not fair and reasonable to place you in a pool of one (if, for example, there are a number of other employees who are doing the same job as you then it would normally be difficult for an employer to justify putting you in a ‘pool of one’).
Questions to ask your employer about the selection process:
- Are you the only employee in the redundancy pool or is there more than one person in the redundancy pool?
- If you are the only employee in the redundancy pool then
- If there is more than one employee in the redundancy pool then you may wish to ask the following questions: who created the scoring criteria? Are the scoring criteria fair and reasonable? Why have these particular scoring criteria been chosen? Have the scoring criteria been applied fairly and reasonably? Who applied the scoring criteria?
- Have you been provided with a copy of the scoring criteria?
- Is the process discriminatory?
If you have concerns about the scoring then, again, put these concerns to your employer in writing and keep a record.
Are there any ways of avoiding making me redundant?
This is a very important question as, although an employer might genuinely conclude that you should be made redundant, there might be alternative means to avoid the redundancy – these could include: allowing you to work less hours; job-sharing with a colleague; placing you on furlough under the Government’s Coronavirus Job Retention Scheme; your employer taking advantage of the Government’s Job Support Scheme; or moving you to a different workplace if there are jobs available there.
Questions you could therefore ask your employer about ways of avoiding making you redundant would include:
- Can I work part-time or reduced hours?
- Can I job share with a colleague?
- Can I reduce my salary?
- Can you put me on furlough instead of making me redundant?
- Can you take advantage of the Government’s Job Support Scheme?
- Can you move me to a different workplace instead of dismissing me?
Are there any suitable alternative positions available in the workplace?
You have the legal right to be considered for any suitable alternative vacancies in the organisation if you are made redundant – these positions, however, must be both suitable for you and vacant at that time. A failure by your employer to consider whether there are any suitable alternative vacant positions could potentially render your dismissal unfair.
Questions to ask your employer about suitable alternative vacant positions would include:
- Are there any other jobs available in the business at the moment?
- If there are any vacant jobs, are these suitable for me?
- Is it possible for me to trial a vacancy for a period of time to see if it’s the right job for me?
What kind of redundancy package can I expect?
If it is inevitable that you are going to be made redundant then it is a good idea to explore with your employer what sums you can expect to receive when you are made redundant. You should normally expect to receive the following sums as part of a redundancy package:
- Notice pay
- Statutory redundancy pay (if you have more than two years’ continuous employment)
- Holiday pay
- Bonus/commission due
You may also be eligible to receive an ex-gratia payment under enhanced redundancy terms (you can read more about our guidance on ex-gratia payments here), and if you are being offered an ex-gratia payment then you will normally be able to be paid such a sum tax-free. This will normally then be paid to you once you have signed a settlement agreement (you can read more about our guidance on settlement agreements here).
If you are offered redundancy pay by your employer then you should make a note of what types of sums you are being offered and the value of the entire package that you are being offered (this might be helpful later in the process).