Redundancy and rights: your frequently asked questions

Sarah Guthrie: Hello and welcome to the Acas podcast. I'm Sarah Guthrie, part of the communications team here at Acas and today I'm joined by Chau Doan, who is part of our helpline team, working incredibly hard at the moment to advise employers and employees on everything to do with the workplace. Today, we're looking at redundancy, what employees are particularly ringing us about at the moment. We've seen calls on the helpline about redundancy go up by more than double. And I wonder, Chau, if you could just start off by giving us an insight into what kind of questions you've been getting from employees around redundancy at the moment?

Chau Doan: Hi Sarah, so yes, we have been receiving a lot of calls regarding redundancy, especially now the news has just been announced that we're going through a recession at this moment in time. So we've been getting a lot of people actually worried about their job status. So they're concerned that whether, if they're on furlough now, whether there's still a job for them to return back to. Or, if they're going through consultation at this moment in time, what their rights are or, potentially, if the employer has already given formal notice of the redundancy, what they can do to address that situation that they're in as well.

Sarah: Ok, so let's start off with that point you just mentioned there about what can you do if you've been given notice of redundancy but you feel like it's been unfair or you don't think the decision has been the right decision. What do you do about that as an employee?

Chau: So we would advise that if they have any concerns regarding their redundancy or they believe that the redundancy was not a genuine one as such, then we would advise them to speak to the employer first to raise that concern to them. Now, it might be the case that, if they have been given formal notice of the redundancy, the employer should also inform them how to appeal that decision as well. There might be certain instructions that the employee has to follow to go through that the appeals process to that, but we normally advise that it should be best practice for the employer to allow the employees to appeal that decision if they disagree with their redundancy. If it's the case that the employer does accept the appeals process to that, then they should then invite the employees to an appeal meeting to discuss that between them during that period of time and, in essence, that would be their opportunity to bring anything forward to the table that they're having concerns about. And they would normally have the right to be accompanied by another work colleague or trade union representative in that appeal meeting between them and the employer as well.

Sarah: Ok, so usually your employer should have let you know that, if you disagree with a decision you can appeal and this is how to do it, and you can bring someone along to that. That sounds like quite a stressful, obviously, discussion for everybody involved. What advice would you have for employees who are in that position about how to conduct that appeal really well?

Chau: So again, the first thing we'd also advise them to do is check their contract. So, there's a clear process that both the employee and the employer has to follow as part of the appeals process, check the guidelines to that as well. So, in a way, both employees and the employers know what to expect in that meeting when they attend that meeting. And then also, if they are a member of any trade unions as well, it might be advisable to get in contact with them as well to see if they can represent them in that meeting as well, if they haven't consented either to attending that meeting by themselves or if they wish to have another work colleague attend that meeting with them, because it can be a stressful situation. And, especially if you've just lost your job and you're trying to argue to either try and get your job back or you disagree with the way that you've been essentially made redundant, then it might be beneficial to have someone there to support them as well in that meeting.

Sarah: So both for the emotional support and, I guess, because you were just saying that the contract is almost the guide through this process and you both should be following the contract and the process, policy, that your organisation sets out, that that can be really helpful as well for another person to hold those details and that structure in their heads almost. So, after that meeting, your employer says either yes or no. If it's a no to the appeal, and you still feel like there's some unfairness there, what could you do with that, as an employee?

Chau: Then, ultimately, if you believe that you've been unfairly dismissed by the employer, so technically a redundancy is also classed as dismissal from your job, then, if you do have 2 years' length of service, you would have the right to be able to bring a claim against the employer for an unfair dismissal, due to your length of service. We will still advise you, rather than doing that claim straightaway, if you can, go for that appeals process first and see what the outcome of that would be. But yes, if it's the case that you believe that you've been unfairly dismissed, due to either redundancy not being a genuine one as such, and you have that 2 years' length of service, you would have the right to pursue a claim to an employment tribunal. If you're considering doing that, you can call one of us on the helpline to help you potentially go through the steps that you can take if you should pursue that claim further.

Sarah: And in what kind of situations might a dismissal of any kind be unfair? Could you describe that for people who might be wondering, well, is this unfair or not? How do I tell?

Chau: In the case of any unfair dismissal, it would mean that they believe that, in essence, they've been dismissed unfairly. So, for example, if they believe that the employer has not followed through with a correct procedure first or they've been unfairly selected for redundancy, then, as long as they have that 2 years' length of service, they can bring that claim. The other exception would be if it's classed as an automatic unfair dismissal. So that would mean that normally the employer's essentially done something against their statutory rights. So, for example, if they felt that they've been discriminated in any way as part of their redundancy. So, if, for example, you were pregnant and you believe that you were only put forward for redundancy because of your pregnancy, then technically that would be classed as automatically unfair dismissal instead. So there's no length of service required for the employer essentially terminating your employment due to a statutory right.

Sarah: Ok. So, if you're worried about a discrimination case, if you feel like perhaps you've been on furlough, you've been looking after children or you're about to go on maternity leave and that might be why you're being made redundant, then, actually, you don't need to have been in your job for 2 years to raise a concern about that. Your rights apply however long you've been in the job, is that right?

Chau: Yes, that's correct. So as part of the Equality Act 2010, the 9 protective characteristics that are protected against discrimination, where there's no length of service required to bring a claim to an employment tribunal for that. And, if you believe that you've been unfairly dismissed due to those reasons as part of your redundancy, then there's no length of service prior to bring that claim. But we would still advise you to go through any appeals process first or potentially raise that as a grievance to your employer because, ultimately, if you were to bring that claim to the employment tribunal at a later date, the courts or the judge might also ask you as well, have you tried to follow the correct procedures yourself? So the benefit of doing all of this first, if you still can, is that you're showing that you've tried to follow the correct procedures yourself. But also, you tried to actually speak to your employer to try and resolve that issue before you brought that claim to the courts.

Sarah: So it sounds like following procedures and making sure that you've gone through the process and paid attention to the contract will help you at a later date, if it does escalate to court.

Chau: Yes, that's correct. So at least you can show that you've done everything correctly yourself. So, regardless of what your employer does, you're showing that you followed the correct procedures yourself as well.

Sarah: Thanks, Chau. That's really helpful. So moving on from that, I'm thinking about employees who might actually have some ideas in their heads of alternatives to redundancy. Their workplace might be considering making redundancies but actually they've thought of alternatives to it – that might be changing contracts. What happens if you can see something as an employee but your employer isn't considering any of those alternatives? How could you influence them in this process?

Chau: So speak to your employer, raise your concerns and, if there's something that you believe that they've either neglected or not taken account of, bring that forward to the employer, though, we do advise that, if they can have that informal discussion first with the employer, if it's an idea that they think that they could bring to the table, that could either help them with their jobs or keep their jobs, and it's something that could be rolled out throughout the company, then that would be their opportunity to do so.

Sarah: So be proactive, don't wait for them to come to you. And do you have any advice for employees about how they might broach that conversation and things that they should keep in mind as they do that?

Chau: Again, it can be a bit of a sensitive subject as well if you're discussing your employment or you're having fears about that you might be losing your job. But, until you have that conversation, you might not know what the outcome of that would be. Yeah, sometimes you have to have a bit of confidence to do that. And, if you're worried about it, then we advise you to try and speak to your employer. So you have a quiet conversation with them at the sidelines to say, well actually, there's an idea that I thought about that could keep my job or keep everyone's job as well. Are you willing to consider that? Every employer should take that into consideration and essentially come up with the ideas themselves. Or, if it's the case that they cannot meet fully the considerations that the employees have suggested, then it might be the case that they could also try and negotiate with them as well or come to a compromise.

Sarah: So perhaps starting informally to kind of sound out and suggest ideas rather than perhaps assuming that everything's done and dusted?

Chau: Yes and the reasons why we advise them to do that as well – to the employers – is ultimately, if they don't, they might potentially cause some doubts within employees' minds to that. So I've actually spoken to people in the helpline before where they said, well, actually, we believe that the employer already had made a decision in their mind. Even though they're going through the process with us, they felt that they've actually already made a decision. Though, again, by the employer not allowing to have that open discussion, it might be the case that they're already causing that tension beforehand. And then, when it does come to the consultation stage, they've already built up that barrier between both parties. So, if both parties can be open about it in the very beginning, it makes the process a lot easier and a lot smoother for everyone to go through.

Sarah: And, speaking of consultation, what about if your employer is thinking of changing your contract but they haven't consulted you? What would you do as an employee in that situation? That's another question that we've had.

Chau: So, we would again suggest to them to check their contract of employment to see whether there's any clauses that allow the employer to do that. So, for example, if there's a flexibility clause in there that allows them to make any changes to their contract as such, so, for example, reducing their wages, reducing the hours or changing their job roles, then, technically, if that clause is already in that contract, the employer could also reserve the right to make those changes. But, at the same time, we would still advise it would be best practice for the employer to consult with the employees first, before they make any changes to that. So, again, we've talked about the communication aspect before, reasons why we advise that the employer communicates with them first is essentially, they explain to them why they're wishing to propose any changes to their contracts and, essentially, what effect it would have upon the employer as well. Because, if they don't, then again it's creating further tension between them and the employees. And it might be the case that they run the risk of potentially having a grievance against them in relation to that, by them not consulting with the employees first.

Now, if there isn't one in there and if the employer wishes to make any changes to that, we would still advise that they need to consult with employees first and get them to either agree to those changes as such. Or the other option is they could essentially just unilaterally just make the change to that. But, again, the risk of them doing that is ultimately, if they were to dismiss any employees on any old contracts and then re-engage in a brand new one, is, if the employee has been working with them for more than 2 years, they could also potentially pursue a claim against the employer for any unfair dismissal as a result of that as well. So, the caveat that we warn to employers is, if they do that, then they could also risk a claim to the courts as well.

Sarah: That's interesting, because that actually relates to another question that we've had through a lot which is about the law around making someone redundant and then hiring someone else. You're talking there about hiring the same person back on a different contract. But thinking about one of the questions we've had is, my employer has made me redundant and then hired someone else – is this legal?

Chau: So potentially it can be, so it's a bit of a slightly grey area and in terms of employment law for that. Now, as long as the employer can show that there's a necessity for them to hire on another person to that role as such or, potentially, if they've lost that contract for that role and they've lost essentially the employees to that but then they gained another contract, but they need to hire the new employees in relation to that then, in essence, the employer could show that there is a need for the employment for them to do so. But it might be best practice that they offer that employment first back to the original employee that was made redundant rather than hiring any new persons on. Because, if they don't, then, technically, if the employee felt that they've been unfairly dismissed as a result of that or they believe that the redundancy was not a genuine one as such, as we mentioned before, if they have that 2 years' length of service, they would also have that right to claim any unfair dismissal against the employer for that reason as well.

Sarah: Thanks, Chau. And we've had quite a few questions around pay and notice periods. It's quite confusing, I think, especially at the moment when people have been on furlough and working different hours. How can people work out what they are entitled to in terms of pay and notice periods, if they are made redundant?

Chau: So, if they are being made redundant, then the employer would then have to serve them notice for their redundancy as well. Now, they might need to check their contract again to see if there's any contractual notice that they're entitled to. But, if there is no contractual notice, then they will be given statutory notice instead. And the statutory notice would normally be for every year that they worked they're entitled to one week's notice, up to a maximum of 12 weeks.

Sarah: Chau, I wondered, because this is a really stressful time for everybody involved, whether you could give our listeners who might be facing redundancy perhaps a kind of key thing to keep in their mind that will help them go through this process really smoothly and navigate these complexities that most people don't often face around employment law. What could they take away with them that will help them go through this really well?

Chau: So the first thing I would advise to everyone who's potentially at risk of redundancy now is check their contract. So, I cannot reiterate the importance of that. Your contract should always tell you what you're entitled to as part of any redundancy procedures. So it should include your redundancy pay and any notice that you're entitled to as well. Now, if you have any concerns about essentially what you're entitled to exactly in your redundancy package, there's a really good redundancy calculator they can use on the government website as well. But, at the same time, we would also advise that if you have any concerns regarding your redundancy, so either whether you’re at risk of it or either going through any consultation period at this moment in time, or you're just suspecting that you might be at risk of redundancy, have that open and honest discussion with the employer. So, sometimes it might be the case that you take the first step rather than waiting for your employer to do that for you. So at least you're being proactive. So, if things do come or arise later down the line, at least you tried to address those concerns and, essentially, you've allowed the employer to prepare for that situation between yourselves as well.

Sarah: Thanks, Chau. So be proactive, have the conversation first. Look at your contract, know it inside out. And you can use tools like our helpline and redundancy pay calculator where you need to know what the details are and to work out what the correct process is.

Chau: These are just the basic guidelines that we give but, if anyone does have any concerns regarding the redundancy that they might be going through, they can always call us on the helpline. So, if they have a specific question that we've not covered today, they can speak to one of our advisers on our helpline as well.

Sarah: Thanks so much Chau. Thanks for joining me.

Chau: Thank you.

Sarah: This has been the Acas podcast. I've put links to the redundancy pay calculator Chau mentioned plus our free helpline number in the session notes for this episode. We're really aware that this is a stressful process at any time but particularly at the moment, so I've also put a link to a resource from Mind, the mental health charity, about how you can take care of yourself if you are facing redundancy. Please feel free to share with anyone who you think could find this podcast useful and thanks for listening.