When employers think about redundancy, it’s easy to assume the hardest part is over once consultation has finished and selection scores have been agreed.
In reality, there’s one more crucial question to answer before confirming dismissal:
“Have we done enough to avoid making this employee redundant?”
Redundancy should never be the first option. Before employment comes to an end, employers are expected to actively consider whether there are any reasonable alternatives that could avoid dismissal altogether.
It’s a stage that’s often overlooked, but one that tribunals will expect employers to have taken seriously. Hari Singh, Employment Lawyer, walks us through what that means in practice…
Redundancy should be the last resort
A genuine redundancy situation doesn’t automatically mean dismissal is inevitable. Employers should always consider whether the need for redundancy can be avoided through alternative solutions, such as redeployment, retraining, changes to working arrangements or other suitable alternative employment within the organisation.
The aim isn’t simply to complete the redundancy process. It’s to explore whether there is a realistic way to retain the employee. Even if no suitable alternative exists, being able to demonstrate that you’ve genuinely explored the options can make a significant difference if your decisions are later challenged.
What is suitable alternative employment?
There isn’t a single legal definition that applies in every situation. Whether a role is suitable will depend on a number of factors, including:
- The employee’s skills, experience and qualifications
- The duties and responsibilities of the role
- Pay and benefits
- Working hours and patterns
- Location and travel requirements
- Seniority and career prospects
A role doesn’t have to be identical to be suitable. Likewise, just because a vacancy exists doesn’t automatically mean it’s a suitable alternative for every employee. The key is to assess each opportunity on its own merits and consider the employee’s individual circumstances.
Be proactive when identifying alternative roles
One of the biggest misconceptions is that employees should find alternative vacancies for themselves. Simply pointing someone towards your careers page or internal vacancies list is unlikely to be enough.
Instead, employers should take an active role in identifying suitable opportunities, discussing them during consultation and considering whether reasonable adjustments, retraining or trial periods could help make a role suitable.
That doesn’t mean creating jobs that don’t exist, though. It means demonstrating that you’ve made genuine efforts to avoid redundancy wherever reasonably possible.
Trail periods can benefit everyone
Sometimes it’s not immediately clear whether an alternative role will work. That’s where a statutory trial period can be valuable. It gives both the employer and the employee an opportunity to assess whether the new role is genuinely suitable before any permanent decision is made.
A successful trial period could avoid redundancy altogether. Even where it doesn’t, it demonstrates that reasonable alternatives were properly explored before dismissal.
Don’t forget about enhanced redundancy protections
Some employees have additional protection in redundancy situations. Employees who are pregnant, on maternity leave, adoption leave or shared parental leave, or who have recently returned from these types of leave, may have priority rights to suitable alternative vacancies.
Failing to identify these employees or overlooking suitable vacancies can expose employers to significant legal risk. It’s important to identify any enhanced protections at the start of the redundancy process and review suitable vacancies carefully before making dismissal decisions.
What if an employee refuses suitable alternative employment?
Not every refusal will be unreasonable. Whether an employee has reasonably refused suitable alternative employment will depend on their individual circumstances. For example, the following may all be relevant:
- A significant reduction in pay
- Increased travel time
- Caring responsibilities
- Changes to working hours
- Health considerations
Rather than assuming an employee has unreasonably rejected an opportunity, employers should take time to understand their reasons before reaching a decision.
Ask yourself one final question…
“If an Employment Tribunal asked us tomorrow what we did to avoid making this employee redundant, how convincing would our answer be?”
If your answer is little more than “There weren’t any vacancies”, it’s worth taking another look. A well-managed redundancy process isn’t just about selecting fairly or consulting meaningfully. It’s also about demonstrating that redundancy really was the last resort.
How can we help?
Whether you’re managing an individual redundancy process or a larger collective exercise, we can help you build a fair, consistent and legally defensible approach to redundancy selection. We can support you with:
Individual redundancies – access to documentation, templates and unlimited employment law advice through our Intelligent Employment platform.
Collective redundancies – end-to-end legal support, including our Collective Consultation Toolkit and expert guidance throughout the process.
Outplacement support – through Working Transitions, part of the Empowering People Group, helping employees navigate redundancy and career transitions with confidence.
What’s next in the Redundancy Risk Series?
So far in our series, we’ve explored the biggest redundancy mistakes employers make, what meaningful consultation looks like, and how to build a fair and defensible selection process. You can revisit everything in our resources section.
Next time, we’ll look at why redundancy is becoming a much bigger legal risk, exploring the impact of recent Employment Rights Act changes and what employers should be doing now.
This update is accurate on the date it was published but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
