对不喜欢这些资料的ID，读起来会很枯燥，请飘过。我摘抄下来放这里，看万一谁有需要。网上的资料很多，但是最好读来自CIPD, ACAS的最新更新比较靠谱.以下资料对简单裁员案例,基本可以够。对复杂的案例,需要掌握具体信息（不加你自己分析的纯粹facts），我才能给予建议或意见。
Redundancy
Member resource
The law is stated as at 20 January 2010
What legislation covers redundancy?
The main legislation governing redundancy includes:
The Trade Union and Labour Relations (Consolidation) Act 1992
The Collective Redundancies and Transfer of Undertakings (Protection of Employment) Regulations 1995 (SI 1995/2587)
The Employment Rights Act 1996
The Collective Redundancies and the Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 (SI 1999/1925)
The Collective Redundancies (Amendment) Regulations 2006 (in force from 1 October 2006).
Other legislation which may be relevant in a redundancy situation, includes:
The Information and Consultation of Employees Regulations 2004 (SI 2004/3426)
The Employment Equality (Age) Regulations 2006 (SI 2006/1031).
For a summary of the main provisions in the Employment Equality (Age) Regulations 2006 which have an impact on redundancy see the question on what legislation provides protection on the grounds of age in our Age discrimination and retirement FAQ.
View Age discrimination and retirement FAQ
When does a redundancy situation arise?
Redundancy only arises in the three very narrowly defined circumstances summarised below. Confusion often arises because ‘making someone redundant' is often used as an euphemism for saying an employee is being dismissed for some reason other than redundancy.
Redundancy arises when either there has been, or is going to be either:
the closure of the business
the closure of the workplace
a diminution in the need for employees
If, and only if, one of these situations has arisen will the redundancy be a genuine one.
The full definition of redundancy for redundancy payment purposes is that 'an employee ... [is] dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:
a) the fact that his or her employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed
b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where the employee was employed, have ceased or diminished or are expected to cease or diminish.'
(Section 139 (1) (a) and (b) of the Employment Rights Act 1996)
The definition used for the purposes of consultation is wider than the above and would include, for example a reorganisation where there is no reduction in the overall numbers.
What procedure should be followed in implementing a redundancy situation to ensure it is as trouble-free as possible?
Some organisations will have an established redundancy procedure set out in the organisation’s handbook. Some will deal with matters informally or only start to consider the appropriate procedure for the first time when a redundancy situation arises. At the very least in order to plan and implement a redundancy situation properly the following stages will be followed in most redundancies:
planning
identifying the pool for selection
invitation of volunteers
consultation - both collective (in large scale redundancies) and individual consultation in all cases
notification to the Department for Business, Innovation and Skills (BIS) in large scale redundancies
use of objective selection criteria
advance notice of individual consultation meeting
permitting a colleague to be present at consultation meetings
opportunity to appeal
allowing seeking of suitable alternative employment
statutory or other redundancy payment
relocation expenses
helping redundant employees obtain training or alternative work.
Of course the exact procedure varies according to the timescale and size of the redundancy. Acas has published guidance on redundancy handling.
Go to Acas website
Redundancy procedures should be based on business needs rather than using age as a factor for selection. For example, selecting employees for redundancy to avoid them qualifying for age-related pension benefits will constitute age discrimination which is unlikely to be objectively justified - see London Borough of Tower Hamlets v Wooster (unreported, UKEAT/0441/08 18 June 2009, EAT. For further information on how to avoid age discriminatory criteria see the question on what employers should do to comply with the age legislation in our Age discrimination and retirement FAQ.
View Age discrimination and retirement FAQ
Many employers were predicted to attempt to make redundancies due to the economic situation. Therefore, it has never been more important for employers to follow the correct procedure to avoid claims. The Department for Business, Innovation and Skills (BIS) has published a new simplified guide to redundancy which includes a redundancy checklist.
View guide and checklist
Before 6 April 2009, compliance with all three stages of statutory dismissal procedures was required. These procedures are now abolished in Great Britain.
Information on redundancy in Northern Ireland is available on the Labour Relations Agency and nibusinessinfo.co.uk websites.
Go to LRA website
Go to nibusinessinfo.co.uk
Should all employers have a formal redundancy procedure?
As indicated in a previous question on trouble-free redundancy, employers can deal with redundancies by an informal arrangement with a practice which varies for each redundancy, or by a more formal policy setting out the approach to be adopted when redundancies arise. A more formal agreement may have been negotiated and agreed between management and trade union or employee representatives.
It is best practice to establish a formal procedure on redundancy which should be made known to all employees for example by inclusion in the organisation’s handbook. If possible, the procedure should be drawn up with the involvement of trade union officials, employees and their representatives when redundancies are not imminent, otherwise fears and suspicions may arise.
If an employer has a formal redundancy procedure what should it contain?
Depending on the size and nature of the organisation, a formal procedure on redundancy would normally contain the following:
an introductory statement of intent towards maintaining job security wherever practicable
an indication of scope, that is who the procedure applies to
details of the consultation arrangements
the measures for minimising compulsory redundancies
guidance on the selection criteria
details of the severance terms
details of any relocation expenses
details of any appeals procedures
assistance with job seeking
counselling
severance payments
appeals.
Do employers have to make the same redundancy payments as in previous redundancy exercises because they are now an implied contractual term?
For any term or condition to be implied into a contract including a contractual redundancy payment:
it must be necessary to give the contract business efficacy, or
incorporated by custom and practice in relation to the employees in question, or
can be demonstrated by the way the contract has been performed or carried out, or
the term is so obvious that the parties must have intended it to be incorporated.
For example enhanced redundancy terms will be incorporated into the employees' contracts if:
the terms were well known by all concerned,
there was a collective agreement containing those terms with the parent company which been applied on previous occasions.
the employees concerned had a reasonable expectation that these terms should apply.
See Albion Automotive Ltd v Graham Walker and others (unreported, [2002] EWCA Civ 96, LTL 21 June 2002, CA).
What is individual consultation in a redundancy situation?
In all redundancy situations employers must meet with all potentially redundant employees individually, even if there is to be collective consultation. Previous case law has shown that dismissals have been found to be unfair where a union has been consulted but not the individual. The employer should arrange for consultation to start at a formative stage and must ensure that individuals have sufficient time to consider the proposals. The law does not provide definitive time scales for individual consultation but requires reasonable consultation in the circumstances. The rules governing individual consultation currently differ depending upon whether more than 20, or less than 20 employees, are to be made redundant within a 90 day period.
Fewer than twenty employees to be made redundant
If there are fewer than 20 employees to be made redundant the employer must consult individually with the employee. There is Acas guidance which covers redundancy dismissals and deals with consultation - see below.
Employers must be able to demonstrate that the employee has been invited to a meeting and had an opportunity to discuss in the meeting the reasons for the redundancy, the pool for selection, the criteria, and any alternative employment. In the course of the consultation process the employee will be notified that they are 'at risk' of redundancy and are kept informed of developments. They will be able to comment on the proposals and be informed of any redeployment procedure and options available. It is good practice if the discussions and outcomes of the meeting are documented. Employers should allow the employee to bring a trade union representative or work colleague to the formal individual consultation meeting in the usual way - see the question below on the right to be accompanied at consultation meetings for more details.
(Although Acas publish guidance on redundancies, their code of practice on disciplinary and grievance procedures and dismissals does not apply to dismissals by reason of redundancy).
Twenty or more employees to be made redundant
Collective dismissals of 20 or more employees are covered by specific statutory procedures. When an employer wishes to make 20 or more employees at the same establishment redundant within a 90-day period, the employer is under a statutory obligation to consult representatives of the affected employees anyway (see question below on collective consultation).
Employers must also be able to demonstrate that the employee has had an opportunity to discuss in a meeting the reasons for the redundancy, the pool for selection, the criteria, and any alternative employment as described imediately above. As there is still an obligation to consult individually as well as collectively.
Further guidance on redundancy procedure and consultation is available on the Acas website and the 'Employment matters' section of the Department for Business, Innovation and Skills website.
Read Acas guidance
Go to BIS website
Information on redundancy in Northern Ireland, including consultation, is available on the Labour Relations Agency (LRA) and nibusinessinfo.co.uk.
Go to LRA website
Go to nibusinessinfo.co.uk
Does an employee have a right to be accompanied by a colleague or a trade union representative at the redundancy consultation meetings?
In the course of the redundancy process there will be several meetings with the employee. Although the precise number of meetings will vary from redundancy to redundancy there will at least be a first meeting (usually with all the potentially redundant employees) to explain the reasons for the potential redundancies and that, there do not appear to be any viable alternatives, how many jobs are at risk etc. There will then usually be an individual consultation meeting where the employer consults with the potentially redundant employee about their potential redundancy, their scores in the selection process etc. Assuming nothing changes, there may then be a final formal meeting at which the employer confirms to the employee that they are being made redundant. If the employee exercises their right to appeal there may be one further appeal meeting.
The way in which the law governing the right to a companion, applies to these meetings is set out below. However the concise answer is that an employee does not have an absolute legal right to be accompanied to all of the redundancy consultation meetings, but that for many years the best advice for employers has been to allow the request for a companion for those employees who wish to be accompanied. This is especially the case at the formal meeting at which the employee is informed of their selection for redundancy.
The relevant legal points to take into account are set out below:
There is a statutory right to be accompanied by a trade union official or a fellow worker, which arises under the Employment Relations Act 1999, Section 10.
This right to be accompanied applies to a ‘disciplinary or grievance’ hearing.
A 'disciplinary hearing' includes hearings that could result in a formal warning or a dismissal.
It is open to legal debate whether a hearing or meeting simply to inform an employee that they are to be dismissed by reason of redundancy, is a ‘disciplinary’ hearing within the meaning of Section 10. See for example Heathmill Multimedia ASP Ltd v Jones and Jones [2003] IRLR 856 EAT which decided that the right to be accompanied did not apply to a redundancy meeting (although for technical reasons this decision was outside the Employment Appeal Tribunal's powers).
The combined effect of the above points is that there are potential legal arguments about when the right to be accompanied applies in a pure redundancy context. An employer who only wishes to comply with the bare minimum necessary may argue that the right to be accompanied does not apply to redundancies at all. However this is an unattractive argument and the safest option is to allow employees to be accompanied at the formal meeting at which they are informed of their redundancy; it is also best practice and fair to allow any requests for a companion at the earlier meetings where the employee is told they are at risk of redundancy.
In a redundancy situation, what is collective consultation?
Employers who propose to dismiss as redundant 20 or more employees at one establishment over a period of 90 days or less must consult representatives of any recognised independent trade union. If no trade union is recognised, consultation must take place with other elected representatives of the affected employees. (See Trade Union and Labour Relations Act (TULRCA) 1992 section 188(1A) as amended). If there are no employee representatives they must be elected solely for the purpose of the redundancy consultation. Detailed requirements govern the election procedures.
The consultation should include:
ways of avoiding the dismissals
reducing the number of employees to be dismissed
mitigating the effects of dismissals, and
the reasons for dismissal.*
Consultation must be undertaken by the employer with a view to reaching agreement with appropriate representatives on these issues. This duty applies even when the employees to be made redundant are volunteers.
It was previously thought that the duty to consult only concerned how a redundancy programme would be carried out, not if there should be redundancies at all. However, in the following case the Employment Appeal Tribunal has decided that where a business is closing down the obligation to consult over avoiding the dismissals must involve consultation over the reasons for the closures - see UK Coal Mining Ltd v National Union of Mineworkers and the British Association of Colliery Management [2008] IRLR 4.
Does collective consultation only apply in a redundancy situation?
The collective consultation provisions referred to in the above question on what is collective consultation only apply in a redundancy situation. However there may be a need for collective consultation in other circumstances, for example under the following regulations:
Transfer of Undertakings (Protection of Employment) Regulations 2006
Where a relevant transfer of an undertaking is proposed and the employer will be taking measures in relation to affected employees then consultation must take place with a view to seeking the employees' agreement to the intended measures.
For further information go to our Transfer of undertakings (TUPE) FAQ for further information and in particular the question on when should consultation regarding a transfer of an undertaking take place.
Go to FAQ
Information and Consultation of Employees Regulations 2004
The Information and Consultation Directive (2002/14/EC) gives employees in the UK rights to be informed about for example:
the businesses economic situation,
anticipatory measures envisaged where there is a threat to employment within the undertaking,
decisions likely to lead to substantial changes in work organisation or in contractual relations,*
employment prospects.
*This category clearly includes redundancies and transfers of undertakings which are already covered by other statutory obligations to consult employee representatives. Therefore employers do not need to consult under the standard Information and Consultation provisions where they notify representatives that they will be consulting under the legislation on collective redundancies or business transfers.
Employers are already familiar with the need for consultation with respect to redundancies, but are not used to consulting concerning other decisions which may lead to substantial changes in work organisation.
The key points are:
The Regulations apply to businesses with 50 or more employees.
The Directive does not require the regulations to apply to businesses with fewer than 50 employees.
An enforced information and consultation arrangement will only arise if ten per cent of the workforce requests such an arrangement (or the employer chooses to initiate negotiations).
If there is no request from the workforce and the employer does not wish to put an arrangement in place, then there is no obligation to do anything.
If ten per cent of the workforce do put in a request if the employer fails to agree an arrangement after six months then an automatic statutory scheme will apply.
The obligations imposed by the statutory scheme provide both employer and employee representatives with a degree of flexibility to tailor the arrangements.
If the statutory scheme applies there must be one representative per 50 employees, subject to a minimum of two representatives and a maximum of 25.
Under a negotiated scheme there can be as many or as few representatives as the organisation and the representatives choose.
Under a negotiated agreement it can be decided that the employer communicate directly with employees, dispensing with the need for employee representatives.
Further information may be obtained from the Department for Business, Innovation and Skills (BIS).
Go to BIS website
When should collective consultation take place in a redundancy situation and how long should the consultation continue for?
Consultation should begin as early as possible and allow for longer than the statutory period of consultation, wherever feasible. At the very least collective consultation must begin:
30 days before the first dismissal takes effect if 20 to 99 employees are to be made redundant at one establishment over a period of 90 days or less
90 days before the first dismissal takes effect if 100 or more employees are to be made redundant at one establishment over a period of 90 days or less.
The provisions apply where an employer is proposing the redundancy of 20 or more employees at one establishment within a period of 90 days or less. So even if the redundancies are proposed in two batches the overall effect is that an employer proposing to dismiss a total of 20 or more employees at one establishment must complete the consultation before any of them are given notice.
No time is specified for the overall length of the consultation although it will be at least 30 or 90 days, plus the length of the notice period required for each employee. Redundancy consultation must begin in ‘good time’ when the proposals are still at a formative stage, to ensure there is reasonable time for meaningful consultation -see Trade Union and Labour Relations Act (TULRCA )1992 s.188(1A) as amended.
For example, in the case of MSF Union v Refuge Assurance Plc 2002 ICR 1365, EAT the employees took their employer to an employment tribunal complaining that it had failed to begin consultation with the representatives 'in good time' in connection with a proposed merger with United Assurance. The Employment Appeal Tribunal said that an employer must consider the probable date of any redundancies and how long will be required for effective, good-faith consultation. That will set the date when consultation should start.
Please also see the question below on collective redundancies and notice of dismissal.
Should collective consultation be completed before notices of dismissal are sent out in a redundancy situation or before they take effect?
Collective consultation should be completed before notices of dismissal are sent out.
From 1 October 2006 The Collective Redundancies (Amendment) Regulations 2006 have provided that employers who are dismissing 20 or more employees at one establishment by reason of redundancy must make the requisite notification of collective redundancies before providing any of the employees with notice of dismissal. This increases the time it takes for redundancy dismissals to take place.
These Regulations are a result of the judgment of the European Court of Justice in the case of Junk v Wolfgang Kuhnel [2005] IRLR 310, ECJ in which it was decided that when collective consultation is required, it must be completed before notice of dismissal is given to any of the employees concerned.
A notice of dismissal issued by an employer during the consultation period will be invalidated. It will still be invalid even if it does not expire until after the end of the consultation period.
In the UK the EAT agreed with the approach in the Junk case before these new regulations were announced - see Leicestershire County Council v Unison [2005] IRLR, EAT.
Should part time, temporary and fixed term staff be included in a redundancy consultation and should they receive a redundancy payment?
The short answer to this question is that some temporary and fixed term staff must be included in a redundancy consultation and some will not need to be included. Just because a member of staff has been included in a consultation does not mean they will necessarily qualify for a redundancy payment.
A prudent employer will have a written redundancy procedure in place. Most well drafted redundancy procedures will encompass a clause headed 'Scope'. In this section there will be an explanation of which employees are included. Normally full time and part time employees will be included. This usually includes those on fixed term contracts and temporary employees unless there are on very short term contracts. For example those with continuity of service of three months or less will often be expressly excluded.
If there is no express policy in place, then an employer must decide carefully which members of staff must be included in the consultation process. Obviously if an employer is in doubt then they should err on the side of caution and include the individual in the process. The following points should be borne in mind:
Protection from unfair selection for redundancy applies to those falling within the definition of‘employees’. Therefore those workers who genuinely do not have employee status need not be included in the consultation process unless the employer is unsure of their status. For further information go to our Terms and conditions of employment FAQ.
Go to FAQ
Temporary or fixed term workers who are employees enjoy the same statutory employment rights including the right to be included in the consultation process and to a redundancy payment as their permanent counterparts.
Whilst employees with less than one years or two years service may be included in the consultation process if an employer is relying on the statutory redundancy payment scheme then only employees with two years continuity of employment will actually qualify for a redundancy payment at the end of the process. Similarly only those with more than one year’s service will qualify to complain that they have been unfairly dismissed as a result of the process unless they fall within one of the exceptions to the one year rule. Go to our Unfair Dismissal FAQ for further information and in particular the question on what reasons for dismissal are automatically unfair and what it means.
Go to FAQ
It is a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, to choose employees for redundancy or treat them any differently in the redundancy process just because they are part time workers. Part time employees can be included in the redundancy process in the normal way. For further information go to our Part time workers FAQ and in particular the question on part time workers and redundancy.
Go to FAQ
Under the Employment Rights Act 1996 the expiry of a fixed term contract counts as dismissal for redundancy purposes. Therefore fixed term employees must also be included in the redundancy process in the normal way. If they are not there may also be a breach of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. For more information go to our Fixed term workers FAQ for further information and in particular the question on redundancy payments.
Go to FAQ
Every temporary, part time and fixed term worker (whether an employee or otherwise) has the right not to be discriminated against or otherwise victimised on grounds of sex, race or disability.
Employers should take great care to ensure that women on maternity leave, those employees on sabbaticals or on secondment, and those on sick leave are included in the consultation process. See question below on pregnant employees and employees on maternity leave.
What information needs to be supplied to the appropriate employee representatives in a redundancy situation?
An employer is required to submit to the appropriate employee representatives for the purposes of collective consultation:
the reasons for the proposals
the numbers and descriptions of the employees whom are at risk including the total number in the pool for selection
the method proposed for selecting employees to be dismissed including any agreed procedures and timescales for the dismissals
if there are to be enhanced redundancy packages, the proposed method of calculating such redundancy payments.
This information must be given to the representatives or sent by post to an address that they have given to the employer. In the case of trade union representatives, the information is sent by post to the union at the address of the head office.
Section 188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out the above information which is required to be submitted.
This important case of UK Coal Mining Ltd v National Union of Mineworkers and the British Association of Colliery Management [2008] IRLR 4 impacts upon the information that employers should provide to employee representatives at the start of a consultation. Where closure of a workplace is for economic reasons the consultation will necessitate the disclosure of sensitive economic information relating to the commercial basis for the decision. See question above on what is collective consultation.
Is it easy to elect employee representatives for collective consultation over redundancies?
No, it is not easy to elect employee representatives for collective consultation over redundancies: there has to be a detailed confidential election process.
The Department for Business, Innovation and Skills website has guidance on collective consultation requirements and the process for election of appropriate employee representatives.
Go to BIS website
Appropriate representatives will be either the representatives of a recognised trade union or employee-elected representatives:
where an independent trade union is recognised, the employer must consult with its representatives
where there is no union recognition agreement, the employer must make a choice to consult with either employee representatives elected for another purpose, or new representatives selected specifically for the purpose of consulting on this issue.
The following is a brief summary of key points which apply where representatives need to be elected:
the employer needs to make arrangements as are reasonably practical to ensure the election is fair
the employer determines the number of representatives but there must be sufficient representatives from all affected areas of staff
the employer determines the representatives terms of office, how long will they be elected for etc
all affected employees must be allowed to present themselves for election as an employee representative, and no employee must be unreasonably excluded
the employer will facilitate the election and must ensure that as far as possible the voting is conducted in secret and the votes are accurately counted
an appropriate term in office for the representatives must be established, of such length as will enable them to complete the consultation on behalf of their colleagues
employees must be able to vote for as many candidates as there are representatives to represent their class of employees.
If no employees put themselves forward for election and employees fail to participate in the employer's attempts to collectively consult, the employer is required to give each individual affected employee the written information usually required to be submitted to employee representatives (see question on the information that is normally required).
For further information see the Department for Business, Enterprise and Regulatory Reform (now Department for Business, Innovation and Skills) guidance on Redundancy consultation and notification and Section 188(A) of the Trade Union and Labour Relations (Consolidation) Act 1992 which sets out the method for the election.
View guidance
What rights do appropriate employee representatives have in a redundancy consultation?
Appropriate employee representatives have the right to:
access to affected employees
office accommodation and facilities if necessary
a right to reasonable time off with pay to carry out their functions
training in connection with those functions
not be dismissed or suffer any detriment because of their status or activities
automatically unfair dismissal if dismissed because of the employee's status or activities as a representative.
What are the consequences of failure to collectively consult over redundancies?
If an employer fails to comply with its collective consultation obligations, an employment tribunal can make a protective award of up to 90 days' pay and in practice the maximum will usually be awarded.
A protective award requires employers to pay employees their normal week's pay for a period of time called the 'protected period'. The tribunal has discretion in fixing the length of that period up to a maximum length of a protected period of 90 days in all cases where 20 or more are to be made redundant. The purpose of this award is to punish a defaulting employer rather than to compensate employees.
The protected period begins either on the date on which the first of the dismissals takes effect, or on the date of the tribunal award - whichever comes first.
The maximum award will therefore be 90 days pay for each employee, regardless of the number of employees. The amount of the award may, however, be less if the tribunal considers that it would be just and equitable in the circumstances.
The only defence to failure to consult is where the employer can show that there were special circumstances that made it impossible to comply with the statutory obligations. Insolvency on its own will not generally be considered to be a special circumstance.
An example from a decided case is Susie Radin Ltd v GMB and ors [2004] IRLR 400, CA. Many of the 108 workers at the Susie Radin clothing factory in County Durham were members of the GMB. The employer was in financial trouble and on 6th April 2000, its solicitor sent letters to the GMB members and to other employees notifying them that subject to any consultations, there would be a 12 week notice of dismissal for reasons of redundancy anticipated to terminate on 14 July 2000.In June 2000 it went through the motions of what it considered to be consultation, but there was no real attempt to consult either the union or any employee representatives. The factory closed on 14th July 2000.
The GMB Union brought a claim for a declaration of failure to consult to that effect and a protective award . The company argued that any protective award should be nil because it had given an extended notice period of twelve weeks to the employees which was not necessary. The tribunal rejected this argument and instead awarded each employee the maximum possible protective award (90 days' salary) at a total cost to the employer of around £250,000.
The company’s appeal to the Court of Appeal failed finding that the Company was merely going through the motions of what it considered to be consultation which was a far cry from meaningful consultation with a view to reaching an agreement and that none of the information required to be supplied in writing was supplied. The purpose of a protective award is to punish a defaulting employer rather than to compensate employees and the argument that 'consultation would have made no difference anyway', which can sometimes be used by employers to reduce compensatory award in unfair dismissal cases has no relevance in connection with protective award.
Further guidance on the protective award suggests that:
If the employer keeps the union informed of possible redundancies before the proposal is finalised that may reduce the protective award to below the full 90 days - see Amicus v GBS Tooling Ltd (in administration) [2005]IRLR 683, EAT.
Although by contrast where the employer had kept the union informed but had deliberately refused to enter formal consultation with a particular group of employees a full 90 days protective award was made. The consultation prior to the making of the proposal to dismiss was not taken into account in these circumstances - see Leicestershire County Council v Unison [2005] IRLR 920, EAT.
A trade union can only claim for a protective award in respect of those employees it actually represents. If a union secures a protective award then that award will also only benefit those whom the trade union represents. Any other employees must make their own claim (although they may do simultaneously with the claim made by the trade union). In cases where the trade union is not recognised in respect of the entire workforce (for example in relation to senior management) then consultation must take place with appropriate employee representatives, representing the non-unionised employees (in addition to the consultation with the recognised trade union) representing the unionised employees) - TGWU v Brauer Coley Limited (in administration) (unreported, UKEAT/0313/06 27 October 2006, EAT.
Consultation over the underlying reasons for the closure must be adequate, otherwise the employer could still be exposed to the maximum protective award - UK Coal Mining Ltd v National Union of Mineworkers and the British Association of Colliery Management [2008] IRLR 4. See question above on what is collective redundancy.
Does notification to the Department of Trade and Industry (now Department for Business, Innovation and Skills) apply to all redundancies?
Employers who are obliged to collectively consult (see question on what is collective consultation?) must also notify the Department of Trade and Industry (now Department for Business, Innovation and Skills) of the proposed redundancies in writing on form HR1. This notice should also be supplied to the employee representatives. Failure to comply may lead to criminal proceedings and a fine of up to £5,000.
For further guidance on the statutory provisions, see the Department for Business, Enterprise and Regulatory Reform (now Department for Business, Innovation and Skills) guidance on Redundancy consultation and notification.
View guidance
What are the common selection criteria for redundancy and how should they be applied?
The key aspects of selection criteria for redundancy is that they must be objective and applied consistently. The selection process will involve the following:
Pool for selection
The first stage for an employer in carrying out a redundancy exercise is to identify the 'pool' of employees from which the candidates for redundancy will be selected. If the wrong pool is identified it could render any resulting dismissal(s) unfair. (See the question below on determining the initial selection pool).
Selection criteria
Where voluntary redundancy or early retirement have not produced suitable volunteers then employers, in consultation with trade union, or employee representatives, should identify the selection criteria to be used.
There may be a collective agreement with a recognised trade union which identifies the selection criteria to be used. All criteria should be completely objective and the overall test is one of reasonableness. Common criteria used in selection for redundancy include:
skills or experience
formal appropriate qualifications, advanced skills and other aptitudes
attendance records (but excluding any absences which were due to pregnancy or disability, to avoid discrimination claims)
disciplinary records (current offences)
performance (there should be objective evidence to support selection on this basis, for example by reference to the company's existing appraisal system)
once the selection criteria have been identified, consideration needs to be given to a relevant scoring mechanism.
If the score sheet method is being used as the proposed method of selection the employees will therefore be aware of this from an early stage and many employers will enclose a copy of the completed sheet with the notification of selection. Obviously it is preferable if the selection process is transparent.
Length of service was previously used as a criteria for selection. However, with the arrival of age discrimination in October 2006, relying on length of service as a sole or main selection criteria runs the risk of being found to be discriminatory on grounds of age and therefore unlawful. In most cases selection for redundancy by applying a LIFO (last in, first out) criteria will lead to the youngest being selected. In 2008 the High Court decided that LIFO as a criterion for redundancy selection can be used in certain circumstances, even though it is age discriminatory. For further information on this issue go to the relevant question below.
Employers will need to take even more care to ensure that their choice of objective criteria for redundancy selection are justifiable. If the choice of criteria means that employees are selected for redundancy:
on the basis of their age, or,
in a way that causes a disadvantage to a certain group of young or old employees
this could constitute age discrimination, unless the employer can objectively justify the use of the criteria. The employer can achieve objective justification by showing that the criteria have been chosen to achieve a legitimate business aim and are a proportionate means of achieving that aim.
View also our Age discrimination and retirement FAQ
In addition, length of service may give rise to other discrimination claims. The period of continuous employment is normally used to calculate length of service. This should be whether full-time or part-time, as to only take account of full-time service might be indirect sex discrimination.
Even though the criteria may be objective the selection will still be unfair if they are carelessly or mistakenly applied.
In addition, selection criteria should be reasonably applied in the light of the circumstances of the individual. The Disability Discrimination Act 1995 makes it unlawful for an employer to treat a disabled person less favourably because of a reason relating to their disability, without a justifiable reason. Employers are required to make reasonable adjustments to working conditions or the workplace where that would help to accommodate a particular disabled person. To summarise, whatever selection criteria are chosen, care needs to be taken to ensure that they are neither directly nor indirectly discriminatory on grounds of age, sex, marital status, race, disability, sexual orientation, or religion or belief.
Should the 'Last in First out' (LIFO) method or any other criteria related to length of service be used as a criteria for redundancy selection?
The short answer to this question is that 'Last in First out '(LIFO) or any method based exclusively on length of service is probably best avoided. However if an employer does use a method based on length of service it must not be a sole criterion, but part of a more complex selection matrix and the employer must also be able to justify using that method.
Historically, employers regularly used LIFO as a reliable method of selection, but even before the the Employment Equality (Age) Regulations 2006 (Age Regulations) it became unfashionable and has been replaced by the more complex selection matrix approach. See the question above on the common selection criteria for redundancy and how should they be applied. Indeed, with the arrival of age discrimination LIFO has been seen as highly risky, as to use this approach may give rise to age discrimination claims because younger employees are likely to be selected.
An important recent case, Rolls Royce plc v Unite [2009] IRLR 576, CA considered the use of length of service as a selection criterion for redundancy.
In this case the employer and the union had agreed employees would be awarded points based on the following redundancy selection criteria, namely:
Achievement of objectives.
Self motivation.
Expertise/knowledge.
Versatility/application of knowledge.
Wider personal contribution to team.
Points were also awarded for each year of continuous service. Employees with the least points were selected for redundancy. The employer applied to the High Court to determine whether using length of service as part of this selection matrix was permissible. The matter eventually reached the Court of Appeal.
The High Court and Court of Appeal agreed that using length of service as a selection criterion could be objectively justified under the Age Regulations. The 'legitimate aim' was the advancement of an employment policy which enabled peaceful and fair redundancies. The length of service criterion respected loyalty and experience and protected older employees who would be more vulnerable in the labour market. (In addition to being objectively justified this redundancy selection criterion fell within the length of service exception in the Age regulations. See the question on benefits and length of service for more information concerning the length of service exemption.)
Go to FAQ
Length of service can therefore be used as a criterion for redundancy selection, but not be a sole criterion. The criteria used by Rolls Royce were only justified on the facts of this particular case. Other employers may not be able to justify its use. It is still a more careful course of action to avoid LIFO altogether rather than being placed in a position of having to justify the method used.
Is a voluntary redundancy a resignation, and do volunteers have to be included in the calculation of the number of employees being made redundant?
No voluntary redundancy is not a resignation. Individuals who volunteer for redundancy are in the same legal position as employees selected compulsorily, for example in relation to their right to receive a statutory redundancy payment. The volunteers have not had their employment terminated by mutual agreement, but have effectively been dismissed.
Volunteers do have to be included in the calculation of the total of more than or less than 20 employees being made redundant for the purposes of consultation - Optare Group Ltd. v TGWU [2007] IRLR 93, EAT.
In a redundancy situation how should an employer determine the initial selection pool ?
In a redundancy situation an employer should be very careful in determining the initial selection pool. Many employers fall down at this early stage by identifying employees who are under-performing. The employer then identifies those employees as constituting the selection pool - this can lead to claims for unfair dismissal.
A formal redundancy procedure may contain a process for selecting the pool or there may be a customary arrangement for choosing a pool. Obviously if such a method exists the employer must use that method or show objective grounds for not using it.
In the absence of a customary arrangement at the planning stage the employer should identify the group of employees whose work takes place at a particular location or whose work has either ceased or diminished or is expected to do so. This will be the selection pool. The pool should contain all employees who undertake a similar type of work in a particular department or at a relevant location. A key aspect is that the pool should not be discriminatory, for example focussing on part-timers who are more likely to be women, or focussing upon a certain age group.
In some circumstances employees in other departments may need to be included in a wide pool. For example if a group of employees use specific equipment which is being replaced and those employees do other work in their department as well, the pool should usually include the other employees in the department and not just those using the specific equipment - see Hendy Banks City Print Ltd v Fairbrother and Others (unreported, EAT/0691/04/TM 21 December 2007, EAT).
For small employers if only one employee falls within the pool then there is no requirement to go through a selection procedure within the pool. However, if the choice of selection pool is biased in the first place then the employee who is selected may have an unfair dismissal claim.
See also question above on the common selection critera for redundancy.
Once employees have been selected for redundancy can they appeal?
Yes, an appeal procedure should be offered to all employees who have been selected for redundancy.
Smaller scale redundancies
The establishment of a redundancy appeals procedure was essential before 6 April 2009 in the cases where the statutory disciplinary and dismissal procedures applied, that is all redundancies affecting fewer than 20 employees, or where more than 20 redundancies will take effect, but in a period longer than 90 days. If appeals were not provided for, then the dismissal may have been automatically unfair even if there was a genuine redundancy situation and there had been an objective selection.
Although the statutory procedures were abolished in Great Britain on 6 April 2009, an appeal stage is still highly advisable to demonstrate reasonable behaviour and to try and prevent tribunal claims.
Larger scale redundancies
The establishment of a redundancy appeals procedure is highly advisable in other cases (namely when the collective consultation provisions apply). The advantage of such a procedure is that complaints about selection for redundancy may be resolved internally and thus reduce the likelihood of complaints to employment tribunals.
What reasons must not be used as a basis for redundancy selection?
The risks of using discriminatory factors including age as a basis for redundancy selection was explained in the above question on selection criteria. In addition, an employee dismissed for reasons of redundancy will be found to have been unfairly dismissed if the principal reason for selection is one of the following reasons:
trade union related membership or activities
for carrying out duties as an employee representative for consultation on redundancies or business transfers
health and safety representative activities
for taking part in consultation on specified health and safety matters
for performing the duties of a occupational pension scheme trustee
for performing or proposing to perform the duties of a workforce representative for the purposes of the Transnational Information and Consultation of Employees Regulations 1999
for taking lawfully organised industrial action lasting eight weeks or less
for asserting a statutory employment right
on maternity-related grounds
by reason of his or her refusal or proposal to refuse to do shop work or betting work on Sundays (England and Wales only)
for a reason relating to rights under the Working Time Regulations 1998
for a reason relating to rights under the National Minimum Wage Act 1998
for a reason relating to rights under the Maternity and Parental Leave etc Regulations 1999
for making a protected disclosure (whistleblowing)
for a reason relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
for a reason relating to the Fixed-term Workers (Prevention of Less Favourable Treatment) Regulations 2002
for a reason relating to the Tax Credits Act 2002
for exercising or seeking to exercise the right to be accompanied at a disciplinary or grievance hearing
for requesting flexible working arrangements
where the employer has failed to comply with the elements of the 'duty to consider working beyond retirement procedure - see our Age discrimination and retirement FAQ
Go to Age discrimination and retirement FAQ
If the reason for selection for redundancy was based on any of these, a subsequent dismissal will be automatically unfair. However, it is for the dismissed employee to establish that one of the above reasons was the reason for dismissal rather than that put forward by the employer.
It is worth emphasising that in addition to an unfair dismissal claim a redundancy dismissal may also be found to be discriminatory where selection was on grounds of age, sex, marital status, race, disability, sexual orientation, religion or belief. Particular care should be taken to ensure that selection criteria are not indirectly discriminatory. For example, selecting part-timers for redundancy may amount to indirect discrimination against women. Selection of women for redundancy on the grounds of pregnancy will also be considered unfair.
Can an employee who is pregnant or on maternity leave be placed in the pool for selection for redundancy in the same way as other employees?
The basic position is that a pregnant employee or one on maternity leave can initially be treated the same as other employees in the pool for selection for redundancy. However if employees on maternity leave are selected, special provisions concerning offering alternative employment apply to protect them.
As long as a fair selection process is applied across the pool for selection, it is possible that a pregnant employee or one on maternity leave may be selected for dismissal by reason of redundancy. Obviously pregnancy (or absence on maternity leave) must not be used as a selection criterion for redundancy. However if absence is one of the criteria to be used, then any absences that relate directly to the pregnancy or to time off for dependents should be disregarded in the scoring to avoid any inference of sex discrimination.
Because an employer risks threatened claims for sex discrimination and automatically unfair dismissal if they select an employee who is pregnant or on maternity leave for redundancy many employers try to leave these employees out of the pool for selection. However employees who are pregnant or on maternity leave can be notified of the redundancy process, invited to redundancy consultation meetings, included in the pool and considered for redeployment in the usual way.
However, if employees who have actually commenced their maternity leave are selected for redundancy then special provisions apply to them. They must be given first refusal on any available suitable alternative employment. For further information go to the question on redundancy during the OML and AML in our Maternity, paternity, adoption leave and pay FAQ.
Go to FAQ
If an employee is made redundant while on maternity leave she is entitled to her notice payment in the normal way. Rights to statutory maternity pay continue even if the employee is made redundant whilst on maternity leave. For more information on maternity pay see the question on maternity pay in our Maternity, paternity and adoption leave and pay FAQ.
Go to FAQ
All employees who are made redundant while absent on maternity leave are entitled to written reasons for their dismissal whether this has been requested or not.
Should a redundant employee be offered a suitable alternative?
Yes, for a dismissal to be fair, an employer must offer any suitable alternative job to the employee to avoid their redundancy. Whether a position is suitable depends on:
the terms of the job being offered,
the employee’s skills, abilities and circumstances,
the pay (including benefits), status, hours and location of the job.
The following points apply to offering a suitable alternative.
Employer's obligations
The employer should make the offer of an alternitive before the old job ends together with enough information about what the alternative position involves so the employee can understand how the two roles differ.
Special provisions apply to offering suitable alternatives to employees on maternity leave. For more information see the question on redundancy during the OML and/or AML period in our Maternity, paternity and adoption leave and pay FAQ.
Go to FAQ
Is the alternative suitable?
The test of what is suitable alternative employment is asessed objectively. Whether it is reasonable for the employee to reject it is assessed subjectively (considering the individual's personal circumstances). Factors to be taken into consideration include pay, loss of status, loss of fringe benefits, place of work, general terms and conditions, job prospects and job content. It would also be prudent to consider opportunities within other associated companies if there is more than one within the group. The following points are relevant to alternative roles:
An employer must give priority to potentially redundant employees for a suitable alternative role even over external candidates although an employer does not have to appoint someone to a post for which someone is not suitable.
Loss of status will make it reasonable for an employee to reject alternative employment; however if the employee is prepared to accept a subordinate position and makes that clear to the employer, the employer may act unfairly if they fail to offer that lower alternative.
Salary of suitable alternative position
The similarity of the salary of the alternative position will be taken into account to assess its suitability. A failure by the employer to provide salary information will make it very difficult for the employee to assess the suitability of the alternative employment and will presumably make it reasonable for the employee to refuse the offer. However the employee should indicate an interest in a particular position offered to them and request salary information. If they do not, then the basic and compensatory award (for any resulting finding of unfair dismissal bassed upon selection for redundancy) may be reduced on grounds of contributory fault - see Fisher v Hoopoe Finance Ltd (unreported, EAT/0043/05 13 April 2005, EAT).
Unreasonable refusal
An employee who unreasonably refuses the offer of a suitable alternative may forfeit their right to a statutory redundancy payment.
For an example see Hudson v George Harrison Ltd (reported in the Times 15 January 2003). In this case, due to a relocation of the employer's premises, the employee in question was at risk of redundancy. She was offered the same job at the new site and the employer agreed to provide free transport for the journey to work, but she refused the offer as she would be required to commute. The employer alleged that the employee had forfeited the right to a redundancy payment by unreasonably refusing an offer of suitable alternative employment. The employee brought a claim for the payment and won. In assessing the right to refuse the test is part objective and part subjective and can therefore take into account the personal circumstances of the employee.
Statutory trial periods
Where the terms and conditions of the new contract differ wholly or in part from the original contract, the employee is entitled to a statutory trial period of four weeks. Any agreement for a longer trial period so as to facilitate retraining must be made before the employee starts work under the new or renewed contract. For more information see the question below on statutory trial periods.
Offering the original job back - withdrawal of redundancy
Employers must continue to seek work for an employee until the date their employment terminates. A suitable alternative may arise at the last minute if economic circumstances change and the employee could have their original job back. This will need the employee's consent if the employee has already been given notice. The correct approach is for the employer to seek the employee’s consent to a withdrawal of the notice of redundancy.
If the employee unreasonably refuses their original job back, then they lose the right to a statutory redundancy payment. The test of whether the refusal is reasonable is subjective. If, for example, they have already secured alternative employment elsewhere their refusal may be reasonable.
How do statutory trial periods operate in a redundancy situation?
In a redundancy situation employees have the right to a four-week trial period in a new job to decide if the alternative post offered is suitable without prejudicing their eligibility for redundancy pay.
The trial period will normally be four weeks but can be longer if the employee needs retraining. If there is to be an extended trial period certain agreed conditions must be strictly observed for the employee to remain entitled to statutory redundancy pay.
After the trial period the employee can either:
Decide the new job is suitable and remain in the position beyond the end of the trial date. If there is no express agreement to extend that trial then the employee will lose his right to a redundancy payment.
Decide the new job isn't suitable and give notice during the trial period. This will preserve the employee's right to a statutory redundancy payment.
The employee must terminate the trial employment within the statutory four weeks to preserve any entitlement to statutory redundancy pay – see Optical Express Limited v Williams (unreported, UKEAT/0036/07 12 July 2007, EAT).
If the employer offers a suitable alternative job and the employee unreasonably refuses it, the employee may lose the right to statutory redundancy pay. For further information on the suitability of alternatives see the question above on suitable alternative employment.
Can part-time employees be dismissed by reason of redundancy if they cannot work full-time and the employer wants a full time employee?
In this situation, there is no reduction in the need for employees to carry out work of a particular kind: on the contrary, there is an increase in demand for work of that type. Accordingly, this does not appear to fall within the statutory definition of redundancy.
It is necessary to discuss the change with the current employee to see if they can change their hours. It may also be necessary to consider whether the work can be done by two part-time workers on a job-share basis. If the reason for the part-time working is childcare related, any dismissal could give rise to a claim of indirect sex discrimination in which case the employer would need to demonstrate objective justification for the requirement that this post be done on a full-time basis.
Can an employer consult about a variation of contract such as a reduction in hours and if the employees do not agree dismiss them and then re-engage on new terms instead of making redundancies?
If there is a reduction in number of employees required to perform the work due to a reduced demand for products, this is a redundancy situation.
As part of the consultation process, measures to avoid or mitigate the numbers of redundancies should be discussed. This could include consideration of a proposed variation of contract.
However, if employees are not willing to agree to t