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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My UK employer is downsizing. There are currently four people,

Resolved Question:

My UK employer is downsizing. There are currently four people, including myself, with the same job description - I and one other are full time employees, the other two are agency consultants (day-rate). We all have good performance reviews. In a few months, there will only be two positions. I have been told that I am at risk of redundancy. I fail to understand how this can be as I would expect the two full time employees to take the positions and the agency contractors to be released in accordance with my company's contract with their respective agencies. I do not believe that my employer can demonstrate that my position will cease to exist. I would like to check my understanding of this before the consultation
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

3 years 7 months

Ben Jones :

Hello, the term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).


The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:



  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

  • There is less work of a particular kind, but the same number of employees are required overall.


A redundancy situation also arises where an employer outsources work previously done by its employees, for example to independent contractors or agency workers. In such a scenario, although the need for the work remains, and the same number of individuals may continue to do the work, the employer no longer needs employees to do that work. The leading case is that of Noble v House of Fraser (Stores) Ltd where the claimant was employed as a cleaner and dismissed and replaced by contract cleaners. She claimed that this was not a redundancy situation as the requirement for cleaning work had not ceased or diminished, but would simply be met from another source. She lost her case because the employer no longer required employees to do that particular job and had replaced them with contractors or agency workers. The law specifically says that there must be a reduced need for employees, other types of workers will not be included.

So this is what may be happening in your case – the employer no longer needs as many employees and is looking to replace them with agency workers. That is entirely feasible and can lead to redundancy of the employees doing these jobs.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

Thank you for your clear reply, the issue is more complex than I thought. In my case I am not aware of any corporate strategy to outsource unlike the clear example of the cleaner you described. The current proposed plan is that one of the remaining positions will be filled by an employee and the other by an agency person. All my annual appraisals are good and there are no significant competency gaps. I have no doubt that the proposal is a result of "cherry picking" the personnel that the manager have worked with longest.

Customer:

Sorry, I pressed enter too soon. I don't quite follow the sentence "The law specifically says that there must be a reduced need for employees, other types of workers will not be included.", particularly the latter half of the sentence.

Ben Jones :

If that is the case, then there is going to be one position for employees available when at present there are two of you doing that job so a redundancy is still likely to exist. What that would mean is that the two employees will go head to head for that one position that is available and one is likely to be made redundant.

Customer:

Yes but there are effectively 4 people (2 staff, 2 agency) competing for 2 jobs. Is there no obligation for the company to prioritise retaining their own employees, especially since there is no corporate strategy to outsource the position?

Ben Jones :

No there is no obligation - they could just have a plan to keep agency staff in one of these positions and they are allowed to do that

Customer:

ok thanks

Ben Jones :

you are welcome, all the best

Customer:

system wont let me click the feedback button because ti says you have not finished answering

Ben Jones :

sometimes there is a delay in enabling it, you can either give it a few minutes or just type your selection on here, thanks

Customer:

Excellent Service

Ben Jones :

many thanks

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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