Feb 2024
How should my employer proceed?
When there are proposed redundancies, your employer should commence individual consultation meetings with those affected. During the consultation process, they should consider suggestions on ways to avoid the redundancies, and look for suitable alternative employment options.
It is important that the consultation process is genuine and meaningful i.e., that you are provided with a genuine opportunity to influence the proposed outcome. If your employer doesn’t hold a genuine and meaningful consultation, you might have an unfair dismissal claim (if you are eligible i.e., have been employed for two years or more).
Your employer cannot force you to accept an alternative position if it differs from your current role, or is on less favourable terms.
What is suitable alternative employment?
Whether a proposed new role would be deemed as “suitable alternative employment” is significant when establishing what your options are.
The following factors will be considered when making an assessment: -
- Skills and experience; and
- The terms of the available position (employment status, place of work, tasks, pay and working pattern).
Rejecting alternative employment and redundancy pay
If you are offered a role that would be a suitable alternative, and you unreasonably reject that role, you will no longer be entitled to a statutory redundancy payment.
To demonstrate that a rejection is not unreasonable, you will need to have a good reason as to why the alternative role is not suitable. Examples include: -
- The job has a lower salary
- The new job will incur higher travel costs, or the journey is much longer
- You will be self-employed when you were previously an employee
- There is a drop in status i.e., you are currently a senior manager, and the offer is for an assistant role
- The responsibilities of the role or skills required are substantially different from your current position.
The assessment of suitable alternative employment can be complex and legal advice on the specific facts is always recommended.
What is the impact of having less than two years continuous service?
You are only entitled to statutory redundancy pay if you have worked for your employer for two years or more. Therefore, if you have worked for the employer less than two years, it might be in your interest to accept the alternative position, even if it wouldn’t be considered as “suitable” this is because you would have no rights to a redundancy payment.
Trial period
If the new role differs to the current role, there should be a statutory trial period of four weeks. Accepting a trial period does not necessarily mean you will no longer be entitled to statutory redundancy pay.
You might have a longer trial period if training is required for the role.
If the trial is successful (i.e., employment continues), you will not receive a redundancy payment and the ending of the original contract is deemed not to have been for redundancy.
If the trial is unsuccessful, you will be deemed as dismissed for the purposes of redundancy pay at the date the original contract ended.
Redundancy and maternity
From 6 April 2024, The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will create further protections for employees who are pregnant or returning from maternity, adoption or shared parental leave, if faced with a redundancy situation.
In the circumstances above, employees will have priority status for redeployment when redundancies are being made, meaning they will have the right to be offered a suitable alternative vacancy (if there is one) before being made redundant. This protection gives those who are pregnant or on maternity, adoption or shared parental leave preference over others.
It is not sufficient for an employer to send an invitation to apply for a role, it has to be a formal offer. The protection only applies to roles which are suitable.
The protection will start as soon as the employer has been notified of pregnancy and will end 18 months from the child’s date of birth. For adoption cases, the protection will start at the beginning of adoption leave and will end 18 months from date of placement or date of entry into Great Britain (if overseas adoption).
Before accepting or rejecting a role
- Check the terms and conditions of the new role
- Ask any questions you might have
- Be clear about your skills and expertise
If you feel you have been treated unfairly during the redundancy process, you should appeal the redundancy outcome as soon as possible after it has been given.
How we can help
We can:-
- Advise on the fairness of a redundancy scenario including any redundancy procedure
- Advise on the redundancy package – including possibly negotiating the terms of an enhanced redundancy package
- Review and advise on any potential claims (including discrimination)
- Draft and prepare an appeal letter
We can offer a FREE 30-minute consultation. Please contact Elizabeth Barrett, [email protected], if you would like to discuss any queries.
