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Redundancy consultation - a detailed guide

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Posted by Tina Chander on 22 May 2020

Tina Chander - Head of Employment Law
Tina Chander Partner - Head of Employment Law

Dismissal by reason of redundancy is considered a legitimate reason for an employer to dismiss an employee. Therefore, in a genuine redundancy situation, employees will not be able to bring a successful claim for unfair dismissal providing the employer has followed a fair process leading to the decision to dismiss.

There is a specific procedure that should be followed by employers when they are making individual employees redundant. The law dictates a different, more complex, procedure when large scale redundancies take place. As such, where an employer proposes to make 20 or more employees redundant from one establishment within 90 days or less, an employer should follow a collective consultation procedure.

Dismissal by redundancy

This does not mean that the procedure for individual consultation for redundancies can be ignored. Once collective consultation has concluded, an employer must make sure that it still consults individually with all employees regarding their potential selection for redundancy. Individual consultation is still essential to ensure that the employer follows an overall fair process in line with employment law

This guide details the process for employers to follow concerning individual consultation as this applies to every redundancy. We outline where the collective consultation procedure should be undertaken. The process for collective consultation is detailed at the end of the guide. If there are less than 20 redundancies, you will not need to follow the guidance in the collective consultation section. 

Redundancy definitions

Definitions

  • Affected employees: those employees who are affected by the employer's proposal to restructure. Or employees affected by any measures proposed which taken (e.g. increased workload).
  • Term of office – the length of time that the newly elected representatives will be elected for.

Individual consultation

Stage one: Establish whether there is a genuine redundancy situation 

For a redundancy to be considered a fair reason for dismissal, an employer must be able to demonstrate there is a genuine redundancy situation.

There will be a genuine redundancy situation where:

  1. There is a closure of the business within which the employee was employed;
  2. There is a closure of the place of business where the employee was employed to work; and/or
  3. There is a reduced requirement for the employee to carry out work of a particular kind.

Stage two: Establish the number of employees at risk of redundancy 

The employer needs to decide how many roles it is proposing to remove from its organisational structure.

If over 20 redundancies are being proposed, the employer will need to consider the collective consultation process detailed at the end of this guide. 

Stage three: Look for alternatives to redundancy

A redundancy is more likely to be viewed as "fair" if an employer has considered alternatives to potential redundancies in advance of making a restructure proposal. 

Alternatives to redundancies may be:

  • voluntary redundancies – employees volunteer to be made redundant as opposed to compulsory selection;
  • Reducing hours of work – this can involve short-time working or overtime bans; 
  • Temporary stoppages of work – this can involve lay-offs or unpaid leave; and/or
  • Recruitment freeze – not taking on any more employees.

Stage four: Establish a proposal for restructure and its supporting rationale 

An employer needs to identify which "roles" it intends to remove and have a sound justification as to why. Roles can be either "standalone" roles, i.e. where only one role of that type exists in the organisation (e.g. vice-chancellor), or can form a "pool" of roles, i.e. where multiple roles of that type exist (e.g. law lecturer). 

If an employer intends to remove a role from a pool of roles, the employer needs to ensure that it consults with all employees within the defined pool before making a selection as to which employee is to be made redundant potentially. If the employer does not add all the appropriate roles into this pool, it risks any redundancies being deemed to be unfair.

There are no fixed rules as to how the pool should be determined. It is up to the employer to decide which roles will make up the pool based on an assessment of which roles represent work of a similar kind. 

However, an employer should remember that it should judge the situation objectively and not take personal views of the individuals occupying particular roles into account when creating the pool. Therefore, provided the employer genuinely applies its mind to those who should be in the pool, the Employment Tribunal is unlikely to question the employers' discretion in this area.

Factors that may be taken into account when considering the pool include, but are not limited to:

  • What type of work is ceasing/diminishing;
  • The extent to which employees do similar work;
  • The extent to which employee roles are interchangeable; and 
  • Whether the employer genuinely applied its mind to the composition of the pool. 

Stage five: Initial mechanism of informing employees they are "at-risk" of redundancy

The employer can meet with all "at-risk" employees as a group and explain:

  • Why there is a potential redundancy situation;
  • The number of roles that are at risk; and
  • The alternatives to redundancy that the employer has considered (possibly asking for anyone to come forward if they wish to take voluntary redundancy).

While it is not imperative that an employer initially meets with employees to explain the situation before formal consultation, many employers do this out of courtesy and to ease the process by providing the employees with as much information as possible and being transparent and open from the beginning.

Regardless of whether or not an initial meeting is held, all employees at risk of redundancy should be informed via an "at-risk" letter to confirm that their role is at risk of redundancy, why this is the case and outlining the consultation process. 

NOTE: It is essential that at the initial meeting, everything is presented as a proposal, and it is made clear that no decisions as to any redundancies have been made. 

Stage six: Pool of roles

If the proposal concerns a pool of roles and there are more employees in the "pool" than the proposed redundancies (e.g. there are 5 law lecturers, and the employer is proposing to reduce this by 2), the employer must establish selection criteria to be used to decide on which employees will be selected for potential redundancy if the proposal goes ahead. 

An employer needs to propose fair selection criteria that it is going to rely on to select those employees occupying roles within the pool that will be selected for redundancy if necessary. The selection criteria should be objective and not based on personal subjective opinion.

Potentially fair selection criteria may include, but is not limited to:

  • Performance and ability;
  • Attendance records; and 
  • Disciplinary records,

A common criteria employers favour is the length of service, e.g. "last-in, first-out". Employment Tribunals have not looked fondly on this as it can be discriminatory based on age. Therefore, if such a criterion is used, it should be used alongside other, more important, criteria or as a tie-break criterion where the scoring of two individuals is equal. 

The collective consultation process should be undertaken here if necessary, i.e. where it is proposed that more than 20 roles are to be removed.  

Stage seven: First consultation meeting 

Letter

All employees should be invited to attend an initial formal consultation meeting. This should be done in writing (usually as part of the "at-risk" letter), and it is recommended the employee is allowed to be accompanied to the meeting by a Trade Union representative or a colleague. 

This letter should make clear that the proposal is subject to consultation and that no final decision has been made at this stage. 

If selection criteria will be applied, the letter should also refer to this as this will form part of the consultation.

First meeting consultation 

An employer should discuss the situation that has led to the proposal for possible redundancies.

If selection criteria are proposed, the employer should discuss this with the employee. This may result in the criteria being changed from the original criteria proposed.

The employer should ask the employee whether they have any counter-proposals to the overarching proposal and the proposed selection criteria, and if so, ask them to explain these.

The employer may also wish to go through any potential suitable alternative roles and the potential redundancy package with the employee so that, if the proposal is adopted, the employee is aware of their options.  

Detailed notes should be taken at this meeting.

Follow up

Following the meeting, an employer should write individually to the employees who were consulted. This letter should confirm what was discussed at the meeting and, if necessary, invite the employee to a further consultation meeting. A second consultation meeting will be required if counter-proposals were not addressed in the first meeting, and/or selection criteria are proposed.

It is advised that the notes from the meeting are sent alongside this letter to allow the employee to review these. The employer should ask for the employee to sign and return the notes to indicate they accept the minutes represent a true reflection of the meeting. 

Stage eight: If fair selection criteria have been used, the employees must be provisionally scored against these.

Once the fair selection criteria have been decided, each employee in the pool must be rated against the criteria to provide them with an overall score. It is advised that this is done separately by two different managers so that the employer can demonstrate the scoring process was objective and fair. 

Stage nine: Second consultation meeting

If a second consultation meeting is required, this should be requested via formal invite. 

A second consultation meeting is not always necessary. However, the option should be given to employees to ensure that the employer can answer any questions the employee may have following the initial meeting/ the employer can provide answers to any counter-proposals raised. 

If the employee forms part of a pool and selection criteria are proposed, a second consultation meeting will be required to discuss the final proposed selection criteria and the employees provisional scored against this. They must also be informed of the highest and lowest scores.

Detailed notes should be taken at this meeting.

Stage ten: Decision on proposal

If following the individual consultation meetings, an employer believes its original proposal should still be adopted; they will need to inform those employees whose roles will be removed.

Out of courtesy, the employer may wish to meet with these employees to explain the situation and once again run through potential suitable alternative employment and the employee entitlements.

Regardless of whether or not a meeting takes places, the employer must write to the employees to confirm the decision to adopt the proposal and what this means for the individual employee. The letter should cover any potential suitable alternative employment and/or potential confirmation of termination by reason of redundancy.  

If there are issues from the second consultation meeting which have not been fully addressed, this letter should also address these.

Importantly, the letter needs to provide the employee with the right to appeal the decision. 

Stage eleven: appeal

If an employee appeals the employer's decision, the employer will need to invite them to attend an appeal meeting, to be chaired by an impartial manager who has not been involved in the process to date. Once again, it is recommended that the employee is allowed to be accompanied to this meeting. Following the meeting, the employer must write to the employee to inform them of the outcome of the appeal. This letter should re-confirm the payments made to the employee if their appeal is unsuccessful. 

Suitable alternative employment

During the consultation process, the employer must offer the employee suitable alternative employment (if this exists) as a way to avoid their potential redundancy. Before the first consultation meeting, the employer should check the list of vacant roles. 

The offer

All offers of suitable alternative employment need to be made before the end of the employee's contract of employment. 

Offers of suitable alternative employment don't have to be made in writing. However, for evidential purposes, it is advised that they are. 

The offer should set out the job and any areas of the role which differ from the employee's current employment. If the employee is offered multiple roles, the differences between these should also be clearly distinguished. 

For the offer to be deemed suitable alternative employment to avoid redundancy, the employee must start this new role within four weeks of their existing employment ending. If the terms of the new role differ from those the employee was initially told, this will not be suitable alternative employment and the employee's original redundancy dismissal will stand. 

Rejection

If the employee unreasonably refuses an offer of suitable alternative employment, the employer is under no obligation to provide them with a statutory redundancy payment. For this to occur, the employer needs to have offered the employee the role, not just invited them to apply for it.

Whether a rejection is "unreasonable" will depend on the suitability of the role to the employee. This is judged objectively on whether the nature of the role is suitable, but also subjectively as to whether the role is suitable for that individual employee depending on their circumstances. It is very risky to rely on a rejection of suitable alternative employment to withhold a statutory redundancy payment. 

Acceptance 

If an employee accepts an offer of suitable alternative employment, they are entitled to a trial period of four consecutive weeks to assess whether, in practice, the role is suitable for them.

While the employee is legally entitled to this, and so it will take effect automatically, it is good practice for the employer to remind them of this fact when offering suitable alternative employment. 

The trial period can be extended for a further four weeks if the employer and employee deem this necessary. However, this extension must be granted in writing before the trial period commences.

If during the trial period the employee decides the employment is not suitable for them, they can choose to leave the role, and they will be treated as if they were dismissed by reason of redundancy on the date their old contract of employment ended. 

If the trial period is successful, the employee will be treated as not dismissed by reason of redundancy and will continue in the new role, while maintaining their continuity of employment with the employer. 

If the employee's employment is terminated during their trial period by an employer, for a reason related to the differences of this new role in comparison to their old role, they will be taken to have been dismissed by reason of redundancy when their old contract of employment ended. 

However, if the employee is terminated for a different reason (for example due to misconduct), they will be terminated at that date for that reason, and will not receive any redundancy payment.

Entitlements on redundancy

Upon a redundancy dismissal, and employee is entitled to their usual basic entitlements of notice in accordance with their contract of employment and payment for their accrued but untaken holiday at the effective date of termination.

The employee may also be entitled to a redundancy payment. This will usually be a statutory redundancy payment. However, employers may provide employees with enhanced redundancy payments over and above the statutory entitlement if they so desire.

Eligibility

To be eligible for a statutory redundancy payment, the individual must be an employee and must have at least two years of continuous service with their employer at the date of termination. 

Exclusions

As mentioned previously, if the employee has unreasonably refused suitable alternative employment with the employer, the employee will lose their right to a statutory redundancy payment. 

Furthermore, if the employee has been dismissed summarily for gross misconduct, the employee has no entitlement to a statutory redundancy payment.

NOTE: Employers cannot get employee's to contract out of the right to a statutory redundancy payment. If such clauses appear in a contract of employment, they are likely to be deemed void by an employment tribunal.

Calculation

The statutory redundancy payment an employee is entitled to is calculated based on their length of service (based on complete years up to a maximum of 20 years), age and salary at the effective date of termination. 

The following multiplier is applied based on the age of the employee at the time of the redundancy: 

  • One and a half weeks' pay for each complete year of service in which the employee was aged 41 or over at the beginning of the year;
  • One week's pay for each complete year of service in which the employee was aged 22-40 at the beginning of the year; and
  • Half a week's pay for each complete year of service in which the employee was under the age of 22 for any part of the year.

A weeks pay is capped by statute. Currently, the cap is £538 per week. 

The first £30,000 of a statutory redundancy payment can be paid tax-free. Anything over and above this amount will be subject to the employee's usual deductions. 

Collective consultation

Duty to inform and consult with appropriate representatives. 

When 20 or more employees could potentially be dismissed by reason of redundancy, employers have:

  1. a duty to inform; and
  2. a duty to undertake fair consultation,

prior to any individual consultation taking place.

Redundancy collective consultation

The extent of these duties is detailed below.

As there are a large number of employees involved, it is impractical for all employees to be informed of the redundancies and consulted individually at the initial stage. Therefore, employers must inform and consult with "appropriate representatives" of the affected employees.

Who the appropriate representatives are will be case-specific, and so employers must look at the composition of the affected employees to determine this:

  1. If an employer recognises a Trade Union in respect of all the affected employees, it is the Trade Union representatives with whom the employer should consult;
  2. If an employer recognises a Trade Union in respect of some of the affected employees, it is the Trade Union representatives with whom the employer should consult regarding these employees only; and
  3. If all/some of the affected employees do not have a recognised Trade Union, the employer should see if there is some other standing body of representatives with authority to consult on the employee's behalf, for example, a works council. If so, the employer may either:

Once this has been established, employers must either:

  • Inform and consult this appropriate standing body of representatives elected for some other purpose; or
  • Hold an election to allow the affected employees to directly elect new employee representatives whom the employer will inform and consult with.

The process to elect new employee representatives

Below are some areas employers should consider before entering the election process: 

Candidates

  • Ensure that all the candidates for election are affected employees; and
  • Do not unreasonably exclude an affected employee from standing for election. This does not prohibit reasonable restrictions being placed on candidacy by the employer, such as a minimum length of service which may be required to ensure the candidate is fully aware of the issues that would concern the affected employees.

Numbers

  • Ensure there are enough representatives to represent the interests of all affected employees, specifically considering the number of affected employees and their job roles; and
  • Consider if the affected employees should be divided into groups and have each group represented, e.g. by seniority level/ geographical local/ job area.

Term of office

  • Decide a term of office before the election;
  • Ensure that the term of office is long enough to allow for the information and consultation process to take place; and
  • Consider if subsequent collective redundancies are going to occur because you may want to keep the employee representatives to avoid having new elections. 

Voting

  • Allow all affected employees to vote;
  • Ensure that the voting takes place in secret and that, as far as possible, all votes cast are counted; and
  • Decide what voting systems will be used in the election.

Staying informed

  • Employers must keep up to date with the employee representatives to ensure that they are fulfilling their role. This includes ensuring that if any employee representative ceases to act (e.g. if they resign or are unable to act), there are new elections held.

Below is some general advice with regards to the election process:

Inform affected employees

  • Before the election process begins, affected employees must be told about the proposals. This can be done in writing but is best-done face-to-face via a "state of the nation" speech to all employees involved. 

Preparation for the election

  • Decide who will run the election. The employer does not have to appoint a third party to run the election, but the process may run more smoothly if they do because a third party is likely to be seen as more independent;
  • Make available a list of eligible voters. It is good practice to circulate this beforehand so that if there are any issues, they can be rectified;
  • Ensure there is a clear timeline for the elections, allowing enough time for the employer to begin consultation with the employee representatives in accordance with the time limits (see below);

Nomination stage

  • Prepare a notice to confirm the purpose of the election and invite nominations for Employee Representatives. In this notice, it is good practice to;
    1. Explain the role of employee representatives;
    2. Set out who can make nominations (and how many). It is advisable to place a limit on this, so the election does not become unworkable;
    3. Set out how many nominations are needed to become a candidate in the election;
    4. Explain how the election candidates will be announced and when; 
    5. Set out when nominations open/ close; and
    6. Provide details of how to submit nominations.

Ballot stage

  • Based on the nominations, the candidates for election should be announced. They may be given a chance to prepare an election statement;
  • Decide if the ballot will be via a workplace vote or a postal vote;
  • If there is a postal ballot, eligible voters must be told that late votes will not count; and
  • An election notice should be given to all eligible voters, containing:
    1. A list of all the candidates (if there is only one for an area if should be explained that no ballot will occur);
    2. When the vote will occur and how;
    3. How many votes each Affected Employee has;
    4. Who will count the votes (and who will supervise this);
    5. How the results will be announced; and
    6. Who makes final decisions regarding the election.

Counting votes

  • Count votes as soon as practicable after the close of polls;
  • Designate certain individuals to count all the votes and supervisors to monitor the counting;
  • Candidates should be allowed to observe the count.

Notification of the result

  • The result should be made available as soon as possible after the count of votes has taken place; and
  • The votes should be kept safe for a minimum period of four months to ensure that if any claim for Unfair Dismissal arises, the employer can defend the claim by demonstrating a fair election process. 

Duty of notification

The employer must also notify the Department for Business, Energy and Industrial Strategy ("BEIS") by completing an HR1 Form. A certain period of time must pass between notifying the BEIS and any potential dismissals occurring. This time period depends on the numbers involved. 

The set time periods which employers must be aware of and comply with are: 

  1. Where there are 100 or more redundancies proposed, no employee can be dismissed until at least 45 days have passed after the BEIS receives notification; and 
  2. Where there are 20-99 redundancies proposed, no employee can be dismissed until at least 30 days have passed after the BEIS receives a notification.

Time limits for consultations

Consultation with the representatives must begin in good time as there are minimum time periods set, which prevent any employees being dismissed by reason of redundancy in a set period after the consultation has started (as set out above). The time period which employers must abide by is case-specific as it depends on the numbers involved.

The set time periods which employers must be aware of and comply with are:

  1. Where there are 100 or more redundancies proposed, no employee can be dismissed until at least 45 days have passed after the start of consultation; and 
  2. Where there are 20-99 redundancies proposed, no employee can be dismissed until at least 30 days have passed after the start of the consultation.

The consultation is taken to begin when the employer provides information on the proposals to the appropriate representatives. It is therefore important to ensure that if the election of employee representatives is required, this takes place in a time-efficient manner as this does not form part of the 45/30-day consultation window, and therefore has the potential to cause significant delays in the overall process.

What the duty to "inform" and "consult" involves

This duty has been split into two stages:

  1. The provision of written information; and 
  2. The consultation on the proposed redundancies, with a view to reaching an agreement.

Stage one

The employer needs to give the appropriate representatives written information detailing the proposed redundancies. In this, the employer should cover:

  1. The reasons for the proposed dismissals;
  2. The roles it proposes to remove; 
  3. The proposed method of selecting employees who may be dismissed;
  4. The proposed method of carrying out the dismissals; and 
  5. The proposed method for calculating the amount of redundancy pay.

If the employer has agency workers, further information should be given. Agency workers have a complex status; please seek specific advice in this situation.

The employer must provide sufficient information to enable meaningful consultation to take place. The employer's plans regarding its proposal may change. However, this is not an adequate reason to prevent information from being given to the appropriate representatives at the outset of consultation. If the proposals do change, the employer has a continuing duty to inform the appropriate representatives of these changes.

Stage two

For the consultation to be deemed "fair", the proposals must still be at an early stage and not set in stone when consultation begins. Furthermore, the appropriate representatives must be given sufficient time to respond to the proposals and put forward their ideas. The employer should thoroughly consider any new proposals made by the appropriate Representatives. The employer must enter the consultation with an open mind and with a willingness to consider other suggestions.

The employer should consult with the appropriate representatives "to reach an agreement" on the following matters in particular:

  1. Avoiding the dismissals;
  2. Reducing the number of dismissals; and 
  3. Mitigating the consequences of the dismissals.

Only once collective consultation has concluded, the individual consultation can begin. 

Penalties

If the employer does not follow the overall process or the time limits listed above, any affected employees can be awarded up to 90 days' gross annual pay each, known as the "Protective Award". The employee is provided with a gross week's pay for each week in the protected period and a proportional sum for each part week in the protected period. There is no cap on the gross weekly pay the employee can receive. 


Guide to making employees redundant

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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