What are the most common mistakes employers make in a redundancy process?

• Reaching a final decision before consultation has taken place

At the point that an employee is placed ‘at risk’ of redundancy, it is vital to remember that it is still a proposal. No matter how unlikely the employer may consider it is that the redundancy can be avoided, they need to approach the consultation with an open mind as to whether the redundancy could be avoided. If the decision to make the employee redundant has been conclusively determined before consultation, this is very likely to make the dismissal unfair.

• Not carrying out proper consultation with ‘at risk’ employees

It may sometimes be tempting for an employer to rush through the consultation process, thinking that the outcome is obvious. However, this runs the risk of the dismissal being found to be unfair if the employee isn’t given a proper opportunity to ask questions and put forward counter-proposals. Where employees have alternative suggestions, employers should give careful though to these and respond properly, even if they seem obviously unworkable to the employer.

• Not dealing with employees on maternity leave appropriately

The legal position and practicalities around redundancies and employees on maternity leave are tricky to manage and cause problems for many employers. Key points to be aware of are:

• Employees on maternity leave can still be put at risk of redundancy if a redundancy situation exists. They should still be placed in a redundancy selection pool along with other employees if appropriate;
• Where a group of employees which includes an employee on maternity leave are made redundant and there is a suitable alternative vacancy, an employer must offer this vacancy to the employee on maternity leave. This is a rare example of where positive discrimination is not just allowed but required by employment law.
• Careful thought needs to be given to the practicalities of an employee on maternity leave meaningfully participating in a redundancy consultation process. It may be that they require more information about the current business situation, more time to prepare any counter-proposals and more notice of consultation meetings.
• Employees are still entitled to the remainder of their statutory maternity pay if made redundant, unless they start another job in the meantime. Consideration should be given as to whether it would be reasonable to delay the redundancy to see whether the situation improves or a new suitable vacancy arises during that time.