Three questions that must be answered when assessing fairness of redundancies

The Employment Appeal Tribunal has reminded tribunals dealing with redundancy-related unfair dismissal cases that they should always investigate three questions, even if they are not raised by the parties. These are:

  • Has there been sufficient warning and consultation about the redundancy proposals?
  • Has there been a fair selection process?
  • Did the employer undertake a reasonable search for alternative employment?

This is an exception from the general rule that employment tribunals are only required to investigate issues raised by the parties. However, investigating the procedural fairness of a dismissal on grounds of redundancy is an exception. That is because answering the three questions summarised above is regarded as absolutely essential when assessing whether the employer has acted reasonably in dismissing the claimant, in cases where both sides accept there was a genuine redundancy situation.

It remains the case, however, that all the key requirements of a fair redundancy procedure can be boiled down to one over-arching question: has the employer acted reasonably in all the circumstances in treating redundancy as a sufficient reason for the dismissal? That is known as the “residual reasonableness question” and needs to be addressed in all unfair dismissal claims, assuming that the employer has first succeeded in establishing a potentially fair reason for dismissing.

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