Your Rights During Redundancy Consultation

Redundancy is not something an employer can simply announce and carry out overnight. UK employment law requires employers to follow a fair process, and meaningful consultation is at the heart of that process. Whether you are the only person at risk or one of hundreds, your employer has legal obligations to consult with you before any final decision is made.

Understanding your consultation rights puts you in a stronger position. If the process is not followed properly, the redundancy may be unfair, and you could be entitled to additional compensation. This guide explains the consultation requirements, the rules around selection criteria, and what you can do if things go wrong.

Individual Consultation

Every employee at risk of redundancy is entitled to individual consultation, regardless of the number of people being made redundant. This is a requirement derived from general unfair dismissal law. An employer who fails to consult individually with affected employees is likely to face a finding of unfair dismissal at an employment tribunal.

A fair individual consultation process typically involves:

1. Warning and At-Risk Notification

Your employer should inform you that redundancies are being considered and that your role is at risk. This should happen before any decisions are final. Being told "you are being made redundant" without prior warning is a strong indicator that the process is unfair.

2. Explanation of the Business Case

Your employer should explain the business reasons for the redundancy. This might include a downturn in work, a reorganisation, a relocation, the introduction of new technology, or the closure of part of the business. You are entitled to understand why redundancies are necessary.

3. Consultation Meetings

There should be at least one individual consultation meeting, though good practice usually involves two or three. During these meetings, your employer should:

• Discuss the reasons for redundancy and give you a chance to respond
• Explain the selection criteria and how they have been applied to you
• Allow you to put forward alternatives to redundancy, such as redeployment, reduced hours, job-sharing or voluntary redundancy
• Genuinely consider any proposals you make
• Discuss any suitable alternative employment within the organisation

4. Genuine Consideration of Alternatives

Consultation must be genuine, not a rubber-stamping exercise. Your employer must approach the process with an open mind and give proper consideration to any alternatives you suggest. While they do not have to accept your proposals, they must be able to show they genuinely considered them and had legitimate reasons for rejecting them.

Collective Consultation

When an employer proposes to make 20 or more employees redundant at a single establishment within a period of 90 days or less, additional collective consultation requirements apply under the Trade Union and Labour Relations (Consolidation) Act 1992.

Consultation Periods

These are minimum periods. No dismissals can take effect until the relevant period has elapsed. The consultation must begin "in good time" and the periods specified are the minimum before the first dismissal, not before the consultation begins.

Who Is Consulted?

Collective consultation takes place with "appropriate representatives". This means:

• Trade union representatives if the employer recognises a trade union for the affected employees.
• Elected employee representatives if there is no recognised trade union. The employer must arrange a fair election process for employees to choose their representatives.

Collective consultation does not replace individual consultation. Both must take place. The collective process deals with the overall proposals, while individual consultation addresses each person's specific situation.

What Must Be Disclosed?

The employer must provide the representatives with written details of:

• The reasons for the proposed redundancies
• The number and descriptions of employees proposed for redundancy
• The total number of employees of that description at the establishment
• The proposed method of selecting employees for redundancy
• The proposed method of carrying out the dismissals, including the timetable
• The method of calculating any redundancy payments above the statutory minimum

HR1 Form

When proposing 20 or more redundancies, the employer must also notify the Secretary of State by filing an HR1 form with the Redundancy Payments Service at least 30 days (or 45 days for 100+ redundancies) before the first dismissal. Failure to do so is a criminal offence.

Selection Criteria Must Be Fair

If not all employees in a particular role or department are being made redundant, the employer must use a fair method to select who goes and who stays. The selection criteria must be:

• Objective: Based on measurable factors, not personal opinion or favouritism.
• Transparent: Employees should know what criteria are being used and how they are being scored.
• Consistently applied: The same criteria must be applied to all employees in the selection pool in the same way.
• Non-discriminatory: Criteria must not directly or indirectly discriminate against employees with protected characteristics under the Equality Act 2010.

Common Lawful Selection Criteria

• Length of service (last in, first out -- though relying solely on this can be indirectly discriminatory against younger workers)
• Skills, qualifications and experience relevant to the ongoing needs of the business
• Attendance records (excluding absences related to disability, pregnancy, maternity or other protected reasons)
• Performance appraisal scores
• Disciplinary record

Unlawful Selection Criteria

The following must never be used as selection criteria:

• Pregnancy, maternity leave or family-related leave
• Part-time or fixed-term status
• Trade union membership or activities
• Having made a whistleblowing disclosure
• Having raised health and safety concerns
• Any protected characteristic under the Equality Act 2010

Right to Appeal

While there is no explicit statutory right to appeal a redundancy decision, the ACAS Code of Practice and employment tribunals expect employers to offer an appeal as part of a fair process. A failure to offer the right to appeal can contribute to a finding of unfair dismissal.

If you wish to appeal, you should:

1. Submit your appeal in writing within any time limit specified by your employer (usually 5 to 10 working days).
2. Set out clear grounds for your appeal, for example: the selection criteria were applied unfairly, there was a suitable alternative role you were not considered for, or the consultation process was inadequate.
3. The appeal should be heard by a more senior manager who was not involved in the original decision, where possible.

Suitable Alternative Employment

Your employer has a duty to consider whether there is suitable alternative employment available for you within the organisation (including associated companies). This obligation continues throughout the consultation period and up to the date of dismissal.

If you are offered suitable alternative employment and unreasonably refuse it, you may lose your right to a statutory redundancy payment. However, you are entitled to a trial period of at least four weeks in the new role. If the new role proves unsuitable during the trial period, you can still claim your redundancy pay.

What to Do If the Process Is Unfair

If you believe your employer has not followed a fair redundancy process, you have several options:

1. Raise concerns during consultation: Point out any procedural failings in writing during the consultation process.
2. Lodge a formal grievance: You can raise a grievance about the redundancy process.
3. Contact ACAS: ACAS can provide free advice and may be able to help resolve disputes through early conciliation.
4. Employment tribunal claim: You can bring a claim for unfair dismissal if you have 2 or more years of service (or if one of the automatic unfair dismissal exceptions applies). For collective consultation failures, a protective award claim can be brought regardless of length of service.

The time limit for bringing an employment tribunal claim is normally three months less one day from the effective date of termination. You must start ACAS early conciliation before issuing a claim.