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Redundancy Advice Scotland

December 16, 2020 Employment

With the ongoing Coronavirus pandemic unfortunately resulting in thousands of job losses across the country and an uncertain future for many more, employment law has become a hot topic, with both businesses and individuals unsure where they stand.

Our employment law expert, Clara Smeaton, recently took part in an online Q&A hosted by the Law Society, answering some of the most commonly asked employment law questions. You can read her answers below:

The employer should draw up a list of objective considerations. For example: experience, training, transferable or “soft” skills of the employee, attendance record. There should be a transparent scoring system and each person at risk of redundancy should be scared by at least 2 people. As before, the criterion cannot be discriminatory and should not even give a question of discrimination.

A person can’t be made redundant because of their age, disability, gender reassignment, marriage/civil partner status, pregnancy, maternity/paternity leave or several other characteristics. A person can (for example) even though they have a disability but the disability must NOT form any part of the consideration or reasons for making them.

A collective redundancy is when an employer is planning to make 20+ employees redundant with 90 days of each other. The employee needs to make sure that all those in the “pool” for potential redundancy selection are kept informed & up-to-date. If the employees are represented by a Trade Union, the employer must consult with the Trade Union representative throughout the process.

Where before we recommended that employers consult an employment solicitor or an HR specialist, similarly we encourage employees to join a trade union to ensure their rights are protected. If there is no Trade Union involved, there should be an employee representative nominated or appointed – the employer should then consult that rep in the same way they would a TU. But again, fairness is key: the employee representative should be given training if necessary and they should fully understand the process, the relevant law, and the employees’ rights. They should be given a fair chance to feed back to the employees at risk of redundancy and to put forward the employee concerns to the employer. As part of a fair and transparent process, the employer should give written confirmation of redundancies and respond promptly to requests for more information, or address particular concerns from the employees.

As previously mentioned redundancy cannot be based on a protected characteristic. A dismissal or redundancy could be deemed automatically unfair if that is the case. An employer needs to follow a full and fair procedure before dismissing any employee. The lack of a fair process can give rise to an unfair dismissal even where the original basis for dismissal was sound.

With regards to redundancy specifically, the selection criteria should be objectively applied and should not take into account personal preferences or an employee’s personality, for example. As with so much of employment law, fairness is key. A fair reason for dismissal and a fair process can ensure that dismissals are NOT unfair. From a personal perspective, dismissed employees may accept their redundancy more easily when they know they have gone through a fair process.

It is important to remember that process and reason are equally important in dismissing an employee. Cutting corners or not following proper procedure could give rise to employment tribunal claims, and more expense and time spent in the long run.

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