The question: Redundancy and re-employment
"Is there a minimum time after a redundancy that employers can re-advertise for the same post, I’ve seen a lot of conflicting advice some companies wait three months, others six. I’d appreciate any advice please."
Legal advice:
Esther Smith, partner, Thomas Eggar
"Well, the answer generally depends on the facts of each situation and why you are re-advertising the posts, and whether the redundancy was genuine in the first place!
"If you are were slightly stretching the rules when making people redundant and now wish to reintroduce those posts, having got rid of the previous incumbents, the issue you have is timing this so as to minimise or avoid any unfair dismissal claims from the people you previously dismissed. Generally speaking an employee has three months from the date of termination to bring a tribunal claim for unfair dismissal although this time limit can be extended in some circumstances.
"Leaving it six months rather than three, greatly decreases your chances of getting any subsequent claims from ex-employees struck out due to the time limit.
"If on the other hand, there is a genuine reason why you now need to re-hire to these posts, such as a new order coming in or a contract won, then timing is not really an issue. You are not prevented by law from re-hiring to those posts, but you would need to be in a position to evidence why the position has changed in order to defend any claims from employees who have recently been made redundant.
"Also, it would be common sense, in the event that the situation did change dramatically following some redundancy dismissals, for genuine unforeseen reasons, to contact those ex-employees when trying to recruit to the posts you now have."
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
Martin Brewer, partner, Mills & Reeve
This is a complicated question and to understand it fully two legal issues need to be explained.
First, it is important to understand some of the technicalities of ‘redundancy’. Although there are several definitions of redundancy the most common is the disappearing job. The employer no longer needs anyone, or needs fewer people to do particular jobs, as a result of which employees are dismissed. These dismissals are caused by the redundancy situation (the redundancy situation being the employer’s need for fewer employees, the disappearance of jobs).
Second, it is also necessary to understand time limits for employment tribunal claims. Assuming you will be concerned about claims for unfair dismissal, the normal time limit for a dismissed person bringing this claim is 3 months from the termination date. However, tribunals have a discretion to allow late claims if, but only if, the claimant can show it was not reasonably practicable for them to bring the claim within the normal 3 months period and the extra time they have taken to bring their claim is reasonable.
So why do these principles matter?
First because the idea of ‘re-advertising the same post’ rather suggests the post didn’t disappear in the first place. If that’s right then there never was a genuine redundancy and therefore no redundancy dismissal. Second, if therefore you do re-advertise and the former employee claims unfair dismissal, you will struggle even to show that you had a potentially fair reason for dismissal. Incidentally there is also the knock on potential tax issue if you have purportedly made a tax free redundancy payment to someone who was not actually redundant.
Second, looking at the time limits, it is tempting to think that just over 3 months is a ‘safe’ period to wait. But in reality if, after that 3 month period, you advertise the dismissed employee’s post, he or she may become aware of it, decide to go to tribunal out of time and argue that their late claim should be allowed because they now have evidence that their redundancy wasn’t genuine, something they could not have known within the normal time limit. I can imagine many tribunal judges allowing a late claim in these circumstances.
Finally, it is of course not impossible for an employer genuinely to dismiss people as redundant and subsequently discover that in fact they cannot manage with fewer staff, or a big order unexpectedly comes in and you need new staff etc. In such cases, assuming the original redundancy was genuine, it is ‘safe’ to advertise the new jobs at any time.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
