Unfair dismissal versus redundancy
If you think you’ve been the victim of unfair dismissal, such as constructive dismissal, this guide will help you check if have a case. If you find that your employer has not done things by the book, you might be able to claim against unfair redundancy or dismissal.
- What is redundancy?
- What is a fair redundancy process?
- What is unfair dismissal?
- How to appeal against unfair dismissal
- Staff in, staff out
- More redundancy advice
What is redundancy?
Redundancy happens when your job disappears. It’s not the same as being dismissed from your job for other reasons.
When you’re made redundant, you’ve done nothing wrong and no one is questioning your ability to do your job.
The most common reasons for employers making people redundant are because they need to cut costs, close down or relocate, or because the work you do is no longer needed.
What is a fair redundancy process?
If compulsory redundancies are necessary, your employer must be fair in deciding who is going to lose their jobs. When deciding, they might consider some or all of the following:
- Any redundancy procedure agreed with your union, if you have one
- Attendance and disciplinary records
- Skills and experience (this can sometimes lead to people having to re-apply for their job)
- Standards of work
Your employer must also give you adequate warning of what is happening, consult with you about why you are being selected and consider alternatives to redundancy, including alternative employment for you where this is available.
What is unfair dismissal?
Unfair dismissal occurs when your employer has not followed a fair redundancy process. Employers should always speak to you directly about why you have been selected and look at any alternatives to redundancy. If this hasn’t happened, you might have been unfairly dismissed.
In addition your employer must not have an unfair reason for selecting you for redundancy, for example:
- Sexual orientation
- Being a member of a trade union
- Working part time or on a fixed-term contract
If you believe that your employer has not followed a fair process, or you suspect you have been chosen for an unfair reason, you might be able to claim unfair dismissal at a tribunal.
In this situation, your employer might offer you a compromise agreement. This is a cash sum in exchange for giving up your right to go to a tribunal. Your employer must pay for you to receive independent legal advice so that you fully understand what rights you will be giving up.
How to appeal against unfair dismissal
Step 1 – Appeal in writing
If you think your redundancy is unfair, you should first appeal against your employer’s decision.
Check your contract or staff handbook for how to do this and make sure you watch out for any time limits. Explain why you think you have been unfairly chosen and what you want your employer to do to put the situation right.
If you have a trade union or employee representative, you can ask them to help you with this.
Step 2 – Talk to your trade union representative
If you are not happy with your employer’s response, talk to your trade union or employee representative, if you have one. They might be better at arguing the case on your behalf.
Step 3 – Early conciliation
If negotiations with your employer don’t work and you think you have a strong case you can make a claim to an employment tribunal.
Before you can do this, you must notify Acas, who will offer to approach your employer and try to settle the case through early conciliation.
Neither you nor your employer has to agree to this. You must notify Acas as soon as possible because strict time limits apply for making a claim.
Step 4 – Consider an employment tribunal
If you can’t settle your claim through early conciliation and still think you have a strong case, you can take your employer to an employment tribunal.
You might have to pay a fee to make a claim but this might be waived if you are on a low income.
Staff in, staff out
Your employer is legally entitled to employ new staff, even if they are making you redundant. They might employ someone to do a different job where you work or to do your job in a different location.
If you think you should have been offered the job, check your contract, then get advice from your union representative or from a solicitor.
“No sooner was I out the door, then someone else 30 years younger got my job. The bosses tried to tell me it was a new post with different skills, but I was perfectly qualified and they never offered it to me. With the help of my union, I won my case at an employment tribunal.” – Francois
More redundancy advice
- Acas (the Advisory, Conciliation and Arbitration Service) offers free, confidential and impartial advice on all employment rights issues in England, Scotland and Wales
- The Labour Relations Agency provides an impartial and confidential employment relations service in Northern Ireland
- Your legal rights when facing redundancy
- Redundancy pay
- Benefits and entitlements if you lose your job