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Employment tribunals - legal tests for unfair dismissal claims - redundancy

This advice applies to Scotland

Your employer might have made you redundant when actually you’ve been unfairly dismissed. Or maybe there was a redundancy situation in your workplace but your employer didn’t follow the selection process correctly.

If you think you shouldn't have been made redundant or you think that your employer didn’t follow the process correctly, you might be able to make a claim to an employment tribunal for unfair dismissal.

If you've been discriminated against you can find out how to take action about discrimination at work.

You might also be able to make a claim for automatic unfair dismissal. It might be automatically unfair if the main reason you’re dismissed is because you:

  • are pregnant or on maternity leave

  • have asked for something you’re legally entitled to at work, for example to be paid minimum wage

  • took action about a health and safety issue

  • work in a shop and refused to work on a Sunday

  • are a trade union member and took part in trade union activities

  • have reported your employer for wrongdoing - this is called whistleblowing

Find out how to make an automatic unfair dismissal claim.

This page looks at the legal tests the employment tribunal judges will apply to decide whether you've been unfairly dismissed.

Your employer doesn’t have to follow the Acas code when they make you redundant but they do have to make sure that the selection process for choosing you was fair.

The tribunal will look at whether:

  • there was a genuine need to make redundancies in your workplace
  • your employer followed a fair procedure for consulting the workforce and selecting people for redundancy
  • the decision to select you was fair
  • your employer made reasonable efforts to find you alternative employment elsewhere in the company.

You can check if your redundancy is fair.

Was redundancy the real reason for the dismissal?

A tribunal will look at the reason the employer gave for making you redundant. A redundancy will be genuine if your:

  • workplace closes
  • employer decides it needs fewer workers, either for financial reasons or because there's not enough business
  • employer re-organises the business and your post is no longer needed

If you can prove that none of these reasons applied in your case, your dismissal will probably be unfair.

Did your employer follow a fair redundancy process?

The tribunal will look at the following things to decide whether your employer followed a fair procedure:

  • when did your employer tell you about possible redundancies? Could you have been told earlier?
  • did your employer consult all the employees who were affected about ways of avoiding redundancies before making a selection
  • was a selection process carried out and was it fair?
  • were you given an opportunity to appeal the decision?

If your employer made 20 or more people redundant, it’s a ‘collective redundancy’. Your employer must hold a group consultation if there’s a collective redundancy - check the rules your employer must follow for collective redundancies

If your employer used a selection process

If your employer used a selection process to select people for redundancy the tribunal will want to know whether you were:

  • told how the selections would be made
  • allowed to comment on the selection methods before they took place
  • if a scoring process was used, whether you were told what your score was and what score you would have needed to be safe from redundancy.

How many people were at risk of redundancy?

The tribunal will look at whether your employer identified all the people who were at risk of redundancy.

If your post was the only one that was no longer needed and you were the only person doing that job, the selection for redundancy was likely to be fair.

However, there might have been several of you doing the same type of work. In this situation, it is good practice for an employer to select a pool of people whose jobs might be at risk and use a fair selection process. This is known as the redundancy pool.

If your employer didn't do this and you were the only person selected for redundancy, even though other colleagues did similar or overlapping work to you, this might be unfair dismissal. It might also be discrimination.

Selecting staff from the redundancy pool

If your employer selected from a pool of people at risk of redundancy the tribunal will look at how they were selected. They will want to know:

  • what scoring process your employer used. For example: 'first in, last out', or a scoring matrix
  • who did the scoring
  • did they use any evidence to support the scores
  • did the scoring process discriminate against you?

Selection scoring

An employer will make a decision based on what they know about you, your skills and your work record. They should take into account your appraisal and work flow records and use this in the scoring process.

You have a right to see your own score and be told why you were chosen. However, you don't have a right to see the scores of your colleagues.

It can be very difficult to challenge the scoring process. To challenge it successfully, you would have to prove that there was some obvious flaw in the process. It can help to have some evidence, such as appraisals which directly contradicts your employer’s explanation for giving you a low score.

Even if you manage to change your score, you might still have been selected for redundancy if you would still have been the lowest-scoring employee. The tribunal will only look at whether the selection process was fair and whether a proper process could have made a difference to you.

Did your employer make reasonable efforts to offer you other work?

Your employer should try to find you other suitable work in the company before they make you redundant. The tribunal will look at whether:

  • you were offered other work and what you were told about the job
  • you were asked to apply for another job
  • you didn't apply for or take another job that was offered to you and why you didn't do this
  • you think there were other jobs available but you weren't offered them.

Your employer only has to make reasonable efforts to find you other work in the company. It might be enough just to direct you to vacancies listed on the company's website or through the HR department.

If you’re on maternity leave, shared parental leave or adoption leave

You should be offered any suitable alternative jobs without having to apply. You should also get priority over other employees, unless they’re on maternity leave, shared parental leave or adoption leave.

Your dismissal is automatically unfair if your employer has a job that’s suitable for you but they don’t offer it to you. It’s likely to be discrimination as well.

You can find out more about jobs your employer should offer you.

If you were offered another job

Your employer might put you through a selection process, particularly if the role is a promotion. If they didn’t ask you or made you apply for your own job, this could be unfair dismissal. If you think this has happened to you, talk to an adviser.

However, if you turned down or didn't apply for other jobs you could have done, the tribunal might decide to reduce your compensation because you could have avoided being made redundant.

If redundancy was not the real reason for your dismissal

If the tribunal decide that redundancy was not the real reason for your dismissal, you might be able to make a claim for unfair dismissal or discrimination, or both.

Next steps

Check if you can make a claim for unfair dismissal

Find out how to take action against discrimination at work

Find out what it costs to make a claim to an Employment Tribunal

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