GUEST COMMENT: When to legally challenge your redundancy
With banking redundancies now commonplace, it's worth reflecting on the legal conditions that make a redundancy genuine. If you lose your job and a genuine redundancy hasn't taken place, you may be entitled to compensation.
If yours is to be a genuine and legally watertight redundancy, the following conditions must apply:
1). Your old job must have disappeared.If you are dismissed because of redundancy, this usually means that your em ployer needs to reduce the number of staff it employs. This may either be because the place where you work is closing down, or - what is more likely in banking circles - because there is no longer the need (or expected to be the need) for you to carry out the particular kind of work that you do. Normally your job must have disappeared. It is not a plausible redundancy if your employer immediately takes on a direct replacement for you working full time in your old role.
2). Your employer must properly consult with you. Where more than 100 people are being made redundant within 90 days from the same establishment (this can mean within the same department in which you work), there is a minimum consultation period of 3 months before you can be given notice of redundancy. This reduces to 30 days where between 20 and 99 staff are being let go. Some employers will choose to pay an additional lump sum within the redundancy package to reflect this minimum consultation period rather than go through the actual process. They would otherwise be ordered to pay a sum reflective of the minimum consultation period as a penalty by the employment tribunal.
3. The process that selected you for redundancy must be fair and transparent. A transparent selection process usually means scoring employees against a range of criteria, such as ??. It is not usually acceptable to make someone redundant solely on the grounds of their cost unless they have been offered the chance to reduce their salary first.
4. Right to appeal Finally, you should be given the right to appeal after you have been dismissed. There is usually anything up to a five day window within which this can be lodged.
Are you able to challenge the redundancy payment offered to you?
The simple answer is, yes, although it is fair to say that in these harsh economic times employers have little difficulty in justifying the need to cut staff.
The main challenges I see at present are accordingly more based on failure of process. This will include the failure to properly consult or select the employee who is to be made redundant. An additional challenge that is made is on the basis that you have not been offered what is the custom and practice of payments previously (or presently) made to other staff. Employers are usually bound by such custom and practice.
There are also some employees whose position is not redundant at all. The real reason for their dismissal may be more down to other factors such as performance, a breakdown of relationship with a line manager, or where they have been on long-terms sickness. Some employers will take advantage of the harsh economic times and utilise the redundancy label to have a wider shake up of staff rather than go through the more difficult task of getting rid of people on other grounds.
Feel free to contact Philip on pl@lzwlaw.co.uk or 020 7357 -9494 for a free consultation on this or any other employment law issue.
