Being made redundant and then discovering that your employer is recruiting someone else can understandably raise questions about whether your redundancy was genuine. However, an employer hiring someone after making you redundant does not automatically mean that the redundancy was unlawful or unfair.
Redundancy is concerned with the employer’s requirements for employees to carry out particular work, rather than simply with the identity of an individual employee. A genuine redundancy situation may arise where a business closes, a workplace closes or the employer’s requirement for employees to carry out work of a particular kind has reduced. This can include restructures where roles are combined or fewer employees are required to perform the work.
The important questions are therefore whether there was a genuine redundancy situation at the time of the dismissal and whether the employer followed a fair redundancy process.
When can an employer hire someone after redundancy?
There are circumstances where an employer may legitimately recruit after making an employee redundant. For example, a business might remove several existing positions and create a new role containing different responsibilities. Its staffing requirements could also genuinely change after the redundancy process has been completed.
The fact that a new employee has been recruited is therefore not enough on its own to establish that a redundancy was unfair. However, concerns may arise where the new position involves substantially the same work as the role that was supposedly no longer required.
If an employer advertises an almost identical job shortly after making you redundant, it may be reasonable to question why the employer considered there to be a reduced requirement for your role or the work you performed. The timing of the recruitment, the duties of the new position and the employer’s explanation for the change may all be relevant.
How do you know if your redundancy was genuine?
A genuine redundancy situation can arise when a business closes, a workplace closes or an employer has a reduced requirement for employees to carry out work of a particular kind. However, the existence of a genuine redundancy situation does not necessarily mean that a particular dismissal will be fair.
Employers should also follow a fair process when deciding which employees will be affected. This will usually involve meaningful consultation, appropriate selection procedures where selection is required and proper consideration of alternatives to redundancy.
If a suitable vacancy was available during the redundancy process, the employer should consider it as a potential alternative to redundancy. A failure properly to identify or consider suitable alternative employment can be relevant when deciding whether a redundancy dismissal was fair. Additional protections may apply to certain employees who are pregnant or have recently taken specified types of family-related leave.
The job title alone will not determine whether a new role is genuinely different from the redundant position. The responsibilities, required skills, working arrangements and overall nature and purpose of the work may all be relevant when comparing the positions.
What should you do if your employer replaces you after redundancy?
If you believe your employer has recruited someone to perform substantially the same work after making you redundant, consider asking for further information about the decision. Comparing your previous job description and responsibilities with the new vacancy can help establish how similar the two positions actually are.
Keep copies of relevant documents, including redundancy correspondence, consultation notes, selection criteria and any advertisement or job description for the new role. The timing of the recruitment and any explanation given by your employer for creating or recruiting to the position may also be relevant.
If you believe there was no genuine redundancy situation or that the redundancy process was unfair, legal advice can help you understand whether you may have grounds to challenge the dismissal.
Employment Tribunal claims are subject to strict time limits. An unfair dismissal claim will ordinarily need to be started within three months less one day of the effective date of termination, subject to the rules relating to Acas Early Conciliation. Eligibility requirements may also apply depending on the type of claim and your length of service. It is therefore important not to delay seeking advice if you have concerns about how your redundancy was handled.
For more information, please contact us on 01524 907100, info@pre-law.co.uk or through our online enquiry form
