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Ask the expert: Redundancy of backfilled post

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This time the experts, Esther Smith and Martin Brewer give their advice on what to do in the case of making this backfilled post redundant.

The question: Redundancy of backfilled post

We have a seconded employee whose post may be made redundant – given that he has been in this post for 11 months and we have backfilled his post is there any legislation I need to take into account when returning him to his post and making the back fill redundant?
 

Legal advice:
 

Martin Brewer, partner, Mills & Reeve
 

The short answer is yes: there are no exemptions from the normal unfair dismissal and redundancy rules in this situation. What you should do will be dictated by the precise contractual arrangements you have with each employee, their length of service and the surrounding circumstances in your business.

In many circumstances it may be reasonable to make the back-fill redundant and allow the seconded employee to return to his substantive post, but this cannot be assumed. You need at least to consider whether it would be reasonable to put both the seconded employee and the back-fill – and perhaps other employees too – in the same redundancy pool. And of course there are the discrimination laws, now contained in the Equality Act 2010, to look out for, not to mention contractual considerations.

One final point. I’m not clear about the length of service of either employee. If either of them has continuous service of less than a year at the point of dismissal, then they would not qualify for unfair dismissal rights, which might give you more room for manoeuvre.
 

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 

I am a little confused by your enquiry as it is not clear whether the employee’s secondment is temporary or indefinite. By the fact that you have referred to his backfilled post, I assume that he was moved out of his original post to the secondment, 11 months ago, and the secondment has now come to an end. The employee is to return to his substantive post and the person who has been covering him for the last 11 months is then out of a job. I hope I have understood!

The situation will depend on a number of things, primarily whether the person covering the substantive post has any service prior to this period of 11 months. If he has not, then it does not appear that he has protection against unfair dismissal so terminating his employment to enable the substantive post holder to return is very easy. If he has over a year’s service in total, the next question is what was said to him on taking up the post in question.

If he was told it was temporary and that on the return of the substantive post holder he would be moved out of the role, then we are fine to make him redundant (subject as always to consultation and consideration of other roles). If he was under the impression that the role was a permanent placement for him then we may be in difficult removing him to slot the other chap in, and the chap who has been seconded elsewhere may be the person to put at risk as there is no requirement for him now that the secondment has come to an end. At the very least you might have to put them both in a selection pool and reduce from two to one. You ought to seek specific advice on this situation!
 

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

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Thank you.