What are minimum redundancy processes when making 1-3 people redundant?Posted in : Seamus Says - Employment Law Discussion on 2 March 2018
Q: Could you please provide clarity on minimum redundancy processes to meet legal compliance if only making one to three people redundant?
Seamus: Well, we’ve seen over the news in the past number of weeks that there’s a number of larger employers within Northern Ireland that have gone through redundancy procedures and there’s a number of them that we’ve heard of. This is slightly different, this question in terms of it’s looking at the lesser number, where you’re making one to three people redundant. What is the procedure that applies?
Probably everybody’s familiar with closing departments down or if there’s an element of the business that’s closing due to whether it’s an economic or trade or what it is. These ones tend to fall in to more sort of the organisational issues where you have a reorganisation within a department and there’s a loss of a smaller number of employees that is taking place as well as straight out of the box, we know that we don’t have the longer consultation periods that have to happen.
There isn’t a time period in the legislation for that consultation period, but it does need to be a reasonable consultation and I suppose that I’m going to go through a number of points that are on my mind in terms of what we need to address and it’s making sure that you are providing adequate time to deal with those and that that’s a reciprocal situation whereby although you’re meeting with the employee and telling the employee what the circumstances are, that you’re also listening to what the employee has to say and taking on board their suggestions and other alternatives too.
Scott: And those situations, Seamus, that’s akin to, if it were a dismissal, for, I don't know, a discipline or something, you would have an investigation first. So, in this situation here, you really ought to have an investigation of sorts. So, is there a way to avoid redundancy because if there are less than 20 redundancies, the 123 procedures apply, a statutory dismissal procedure applies to dismissals in Northern Ireland? Not in GB, but in Northern Ireland, they do.
Therefore, if you fail to write to the person to say their job was at risk and you failed to have a meeting about that potential termination and you fail to give them the right to appeal, it’s automatically unfair in Northern Ireland.
Seamus: That’s correct. You must use the statutory disciplinary procedure and that always raises the memory in my head of the redundancy issue that I dealt with in the tribunal and I remember the tribunal judge saying it was always a suspicious scenario from the tribunal’s point of view whenever you were only making one person redundant because I suppose there’s a bit of scepticism around how that redundancy has come about, but certainly, you must use the statutory disciplinary procedure.
Just as a side issue in terms of that, remember the right of accompaniment for the employee. This is a formal process and there is a right of accompaniment for the employee to bring their [inaudible 00:12:50] representative or their workplace colleague. Coming back to what I was talking about before, the redundancy must be genuine. You’re really looking at what’s the true reason here.
Is it a circumstance where we are bringing about a redundancy because we’re not happy with the employee, because an issue has arisen in terms of personality clashes or there is a performance issue that we don’t want to deal with and we’ll push it through as a redundancy? My view tends to always be make sure that the redundancy is genuine because where it’s not, you tend to get called out. The truth comes out somewhere along the line and you don’t want that to happen at a cross-examination stage at the tribunal. So, look for the redundancy to be genuine.
Again, general advice - the process must be open and transparent. You should be open to all ideas the employee has and you should be keeping the process as transparent as possible as well. Listen to what the employee has to say. Consider their suggestions and their alternatives.
Before you get into any compulsory scenario, you should be looking at voluntary redundancies before implementing that process or asking for comments in terms of the ways to avoid a redundancy. I’m flagging this about identification of your pool of employees. I accept the fact the question is around one to three people, but that still may require you to form a pool and making sure the pool is correctly formed.
That’s one of the more tricky areas when it comes to redundancy. Then it’s looking at the fair selection criteria to that pool and making sure the selection criteria is fair, that it’s balanced and that you’re not discriminating. That’s an important aspect when it comes to redundancy because a lot of indirect discrimination can take place and direct also, but in terms of putting the policies and procedures together for selection, sometimes that can come into play.
Scott: So, ordinarily, you’d look for volunteers because if somebody volunteers, they really don’t have much of a claim against you.
Scott: But you retain the right to reject that application.
Seamus: Yes. It comes down to the needs of the business.
Scott: Absolutely. One of the other things, of course, is that it’s difficult. You’ve said it’s difficult to get it right when you’re weighing up, “Do we need this person? Do we need that person?” You’ll have people who have multi-skills. It’s all very well saying we’re going to make a particular position redundant, but that position is held by a person who may have skills that can work in another part of the business and therefore how wide do you make the pool when you’re looking at it? The chances are an employer, if you’re maintaining the business, you’re not closing it down or not closing a whole unit, the chances of getting it wrong are pretty high.
Seamus: They are indeed.
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