It is important that there is no pre-determined decision to make a particular individual redundant until the end of the consultation process. Using the right terminology to describe the status of the staff during the consultation period is therefore critically important if you wish to avoid later unfair dismissal claims.
At the beginning of a non-collective redundancy consultation process (where you are making less than 20 redundancies in a 90 day period) we usually recommend an initial group meeting for all those who are “at risk” of redundancy and will remain “at risk” until the end of the consultation process – because you should not be making your final decision until the consultation has taken place.
The only time you should refer to “selection” is where you have a selection pool from which you score to reduce numbers. Where at risk staff are scored, the lowest scoring employee should be told that he/she has been provisionally selected for redundancy pending the outcome of the consultation process. You should tell the other staff who have been scored that they have not provisionally been selected for redundancy.
Where it is envisaged that all “at risk” roles within a pool will be made redundant, there is no requirement to score to provisionally select for redundancy. So, for example, where redundancies are needed due to a restructure, staff at risk who either do not apply for newly created roles or do not get them are not “selected” for redundancy and should not be described as such because the employer is not scoring/interviewing to select for redundancy but instead for the newly created role. Unsuccessful applicants in this situation will remain “at risk” of redundancy and if there are no other suitable alternatives within the group business, dismissal by reason of redundancy will be confirmed at the end of the consultation process.
In a restructure situation where an applicant applies for and is the best candidate for a newly created role you should tell that candidate that he/she has been provisionally allocated the new role pending the outcome of the consultation process. You should only offer the role when the consultation period with all ‘at risk’ employees (including the unsuccessful applicants) ends.
The reason for taking the above approach and in making everything provisional is that no decision should be taken until the end of the consultation period in case valid points are raised by the ‘at risk’ staff which require you to re-evaluating the position. So for example, an employee might justifiably challenge her/his scores which could result in her /him no longer being the lowest scorer or in the context of a restructure, an employee could justifiably challenge the decision to reject him/her for a newly created role which might result in him/her being offered that role in the place of the candidate to whom it had been provisionally allocated.
If you need advice or have any questions in relation to redundancy planning and consultation, please contact David Greenhalgh on 020 3603 2177.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.