Can I claim a redundancy is an unfair dismissal or unlawful discrimination?

Last updated: 30 Jun 2020

Dismissal in a redundancy case may also be an unfair dismissal.

There are four potential issues which might make a redundancy dismissal unfair. These are if:

  • there was not a genuine redundancy situation
  • the employee was unfairly selected for redundancy
  • there was inadequate consultation with the employee, or
  • the employer fails to seek alternative work for the employee.

For example, if an employer has used an unfair selection process, and the employee has at least two years continuous employment, they may be able to bring a claim for unfair dismissal and recover additional compensation through the employment tribunal.

Automatic unfair dismissal

If an employee is selected for redundancy for a ‘prohibited reason’ the dismissal will be automatically unfair. These include:

  • pregnancy, maternity or the taking of parental or family leave
  • health and safety activities
  • trade union membership or activities
  • making a protected disclosure in the public interest (whistleblowing)
  • being a statutory employee representative or pension scheme trustee
  • attempting to assert a statutory right.

Selection for redundancy on all these grounds will make the dismissal automatically unfair. In these special cases the employee does not have to complete two years’ continuous employment as they would with ordinary unfair dismissal cases.

Discrimination under the Equality Act

If a redundancy dismissal is directly, or indirectly, because of a protected characteristic it will be unlawful discrimination under the Equality Act.

The protected characteristics are; age, disability, gender, gender reassignment, pregnancy or maternity, marriage or civil partnership, race, religion or belief, or sexual orientation.

There is no qualifying length of service for claims under the Equality Act.

Similar provisions apply under the equality legislation in Northern Ireland.

Redundancy during maternity leave

Where an employee is at risk of redundancy during maternity, shared parental or adoption leave, they must be offered any suitable available vacancy. In this case the new job must be both suitable in relation to the employee and appropriate for them to do. The terms and conditions of the new job must not be substantially less favourable than the old job.

This effectively gives the person on maternity leave precedence over other workers at risk of redundancy.

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