December 21, 2022
Facing redundancy is stressful and not a situation that many want to find themselves in. Redundancy must follow a certain process within the law, and there may be occasions when someone being made redundant might suspect that they are being treated unfairly. One of the issues that you might consider is whether it’s acceptable for your role to be advertised before you are dismissed from your job.
When a position becomes redundant, it sometimes means that role will no longer exist. The person is not just being let go from their job but is being asked to leave because their position will no longer be required. This can happen as a result of restructuring or other circumstances. However, it’s possible that if you are made redundant, the process is not followed properly and you may have a case for unfair dismissal or unlawful discrimination.
Can My Job Be Advertised Before I Am Dismissed?
You have been informed that you will be made redundant, but then you discover that your role or one very similar is being advertised either internally or externally. Naturally, you wonder whether this is appropriate and allowed, as your role should no longer exist after you have left.
If your employer starts advertising your job before you leave, it could be a sign that you have been unfairly dismissed. One example of unfair dismissal is when redundancy is a pretext to dismiss someone, instead of the real reason the employer wants them to go. If your employer starts advertising your role or one that looks similar while making you redundant, it could be a sign that it’s not a real redundancy and therefore an unfair dismissal.
Another possibility is if the employer doesn’t take the correct steps before making someone redundant. They should carry out consultation before confirming redundancy, in addition to exploring alternatives to redundancy, such as other vacancies, or reduced hours or pay. They should also use fair selection criteria when selecting an employee or employees from a group of employees to be made redundant. Use of unfair selection criteria, such as sickness absences, can potentially give rise to discrimination claims.
Depending on the circumstances, it might not be a genuine redundancy. When the role still exists, there is no set time employers have to wait before advertising but any advert will be good evidence for a dismissed employee that redundancy was not the real reason for their dismissal. Those with at least 2 years’ continuous service will be able to claim unfair dismissal provided that the job is advertised within 3 months of the effective date of termination.
What Are Unfair Reasons for Redundancy?
When making redundancies,a fair and objective way to select people for redundancy should be employed which might include methods such as last-in-first-out, asking for volunteers, disciplinary records, or staff appraisal markings, skills, or experience. If you are in a unique role which will no longer exist in a new proposed structure, there is no need for the employer to follow a selection process.
However, there are a number of reasons why you can’t be selected for redundancy. These include:
- Gender reassignment
- Marital status
- Religion or belief
- Maternity leave, birth, or pregnancy
- And a number of other discriminatory reasons
Unfair reasons for redundancy may relate to the individual’s identity or they can also relate to actions or behaviour and they can give rise to claims for unlawful discrimination or detriment. For example, if an employee raises a health and safety issue with their employer, they could not be made redundant for this reason (although they could face redundancy for unrelated reasons).
Premier Legal successfully acted for an employee who had been employed in a senior role and was informed that he was at risk of redundancy due to his role no longer being required. The company maintained that his was a “stand-alone or unique role” but in actual fact, the Claimant’s role was the same as and interchangeable with 4 other managers, to whom the Claimant’s clients were to be re-allocated. Internal job vacancies that had appeared before he was told that he was at risk were removed from the system.
It was contended for the Claimant that the redundancy was a sham; that if a fair selection procedure had been carried out by reference to the correct selection pool then the Claimant would not have been at risk in view of his skills, experience, and additional responsibility and that the employer should have considered “bumping”. The Claimant claimed unfair dismissal and unlawful age discrimination and an out-of-court settlement was concluded.
What to Do If Your Employer is Advertising Your Job
If your employer is advertising your job after you have been selected for redundancy, you could have a case for unfair dismissal. You can bring an employment tribunal within three months of the end of your employment.
The first step should be to get legal advice. Contact Premier Legal to speak to a member of our expert team about your case.