The experts, Adam Partington and Esther Smith advise on what a vauge redundancy conversation means for an employee.

The question: Question regarding redundancy

I was in a meeting with my manager last week to discuss topic a. During the meeting my manager raised the issue of redundancy and suggested a possible leave date of 31st January for me. I subsequently sent him an email asking if, following our discussion, I was now "formally at risk" – to which he replied, no it was an informal discussion… Where does this leave me? What are my best options for getting clarity from my manager regarding the situation?

Legal advice:
 

Adam Partington, solicitor, Speechly Bircham
 

Given the apparent inconsistency between your manager suggesting a possible leave date to you and his subsequent confirmation that you are not formally at risk and that his discussion with you was informal, you are right to be confused about the current situation. You have two options: either drop the subject and wait for a formal announcement, which may or may not affect you; or you can seek clarity from your manager as to why he raised the matter with you in the first place. Although he has confirmed you are not at risk of redundancy, you are concerned that he may have knowledge of proposed redundancies or perhaps this was an attempt by your manager to resolve an underlying conflict with you or your performance.

You could ask him directly why he made the proposal, or more indirectly whether redundancies are being contemplated and, if so, when and how might this affect you. It may be that unless and until a formal consultation process begins, your manager will be unwilling or unable to provide you with such details, but it is worth asking if you are concerned.  If it is the case that this is unrelated to any redundancy and your manager was seeking to resolve a conflict with you or your performance, you will have to discuss this in detail with your manager to find a way of addressing his concerns, if he has any.

If an employer does not adequately consult with an employee before making that employee redundant it exposes itself to the risk of an unfair dismissal claim. Further, if 20 or more employees are at risk of redundancy, your employer needs to carry out collective consultation. In essence this means that it needs to consult employee representatives for a minimum period of time. A failure to do so exposes the employer to liability for a “protective award” of up to 90 days gross pay for each employee whom the employer dismisses or proposes to dismiss as redundant and in respect of whom the employer has not properly undertaken collective consultation.

Your manager may have put himself at a disadvantage if you are subsequently made redundant because, in suggesting a leave date for you before carrying out a proper consultation with you, he may unwittingly have revealed that a decision to make you redundant had already been made and any subsequent consultation was a sham. It is difficult to evaluate the strength of this argument on the available information. If a formal redundancy consultation process commences, you may want to obtain legal advice if you suspect that the employer is not complying with its consultation obligations, that the consultation is a sham or, of course, if you suspect it is not a genuine redundancy situation. Also, it is important to remember that if you are made redundant you only have three months from the date your employment terminates in which to present an unfair dismissal claim to an employment tribunal.

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Esther Smith, partner, Thomas Eggar
 

It is hard to give you any definitive advice without more information, such as how long you have been with your employer and whether you are one of a group of people performing your role. However, assuming you have over a year’s service, if you are not formally at risk of redundancy then your employer should not terminate your employment by reason of redundancy without consulting with you, and their failure in this respect may give you a claim against them for unfair dismissal.

In terms of getting clarity I suggest that you either leave the issue and wait for your employer to take further action – they cannot terminate your employment in January without telling you – or alternatively speak to someone more senior than your manager, such as HR if you have an HR team or your manager’s manager.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.