It might be that your redundancy process is not well received and there are complaints which require to be dealt with. Below we look at the types of complaint you might encounter, how you might want to deal with those complaints and what to do if you are unable to resolve a complaint, which may be useful if you do encounter issues during or following your redundancy process.
What types of complaint might I receive about the redundancy process?
There are a number of complaints which could arise during a redundancy process. A complaint might relate to:
- Whether there is a genuine redundancy situation. Is there a fair reason to make someone redundant because of a reduction of the type of work or closure of a workplace or the business? If you are unsure if redundancy is the reason for a dismissal, see our guide here.
- Whether the consultation process has been run fairly and in accordance with your business’ redundancy policy. Have employees been given time to prepare for meetings and given the option of being accompanied at those meetings? Have employees had important information provided to them in writing? If there have been errors in the way the redundancy process has been carried out, this could make a subsequent dismissal unfair.
- Questions about whether the pooling was correct and included the correct individuals, particularly if there is only a pool of one.
- Whether the selection criteria were fair and whether these should have been agreed in advance if they were not. There may also be complaints about whether only agreed criteria were applied or whether the agreed criteria were applied in a fair manner and weighted correctly.
- Whether you have made a sufficient search for suitable alternative employment, signposted employees to available roles effectively or whether a role should have been offered to an employee.
- Whether you have made suggestions to avoid or reduce redundancies, or whether the suggestions made by employees were carefully canvassed and considered.
It may be that a combination of these complaints are brought by the same or different individuals involved in the redundancy process. Complaints may be informal and resolved by discussion and explanation, or it may be that complaints are more formal or consistent amongst several employees and so are less straight forward to resolve. Whether a complaint is written or verbal, you should encourage an employee to write down their complaints. Regardless of whether they choose to do so, you should not dismiss a complaint because it is not in writing. Make clear how complaints can be pursued should an employee wish to continue with a complaint.
How can I best deal with complaints about the redundancy process?
Whether a complaint is verbal or written, informal or formal, the first step will be to try and understand from the employee what the complaint is. The easiest way in which to do this is to meet to discuss the complaint if it is informal or verbal or if the employee has put the complaint in writing and they are agreeable to an informal meeting to discuss this. That way, the complaint can be investigated and pursued as a grievance, if this is what the employee still wishes to happen. Whether a complaint is verbal or in writing, it is important to ensure that the employee has a copy of your business’ grievance procedure and that you follow this exactly.
There are some general principles which you will want to abide by when dealing with a complaint from an employee, such as having clear and unambiguous communication, which you should ideally confirm in writing. There should be ample opportunity for employees to feel that they are able to get their point across and be heard, and that they will not suffer a detriment as a result of this. The complaint should be carefully investigated, but ought to be dealt with promptly, to avoid additional anxiety for the employee. If there is not undue delay, it is likely that complaints will be easier to resolve and that discontent, poor morale and complaints will not continue as long for the affected employee and spread to other employees within your business.
An employee should be able to expect that any complaint will be dealt with confidentially and separately from the redundancy process, and so ideally an individual not involved in the redundancy process (even if this means an HR professional from outside your business) should investigate the complaint to demonstrate objectivity, independence from the redundancy process and so impartiality in reaching a fair conclusion.
If a grievance process is required to be followed to resolve one or more complaints by employees during a redundancy exercise, you may need to pause the redundancy process to deal with the grievance fully first. This will reduce the chances of any future dismissal on the grounds of redundancy being seen as unfair.
If an employee still has complaints after they have been dismissed, as with any employee being dismissed, you will want to offer them the opportunity to appeal against their dismissal on the grounds of redundancy.
What if a redundancy complaint can’t be resolved?
It is possible that an entire grievance process will complete or an appeal against a redundancy dismissal will not overturn the decision to dismiss, and so a complaint is not resolved. If this is the case, it is advisable to seek legal advice at this point to assess what the likely risk to your business might be. Once your internal processes are complete, whether this be the redundancy process and/or grievance process and if appeals have not overturned the original decision, your employee will be required to look externally to your business if they wish to continue to pursue their complaint.
This means that to pursue their complaint, they would need to commence ACAS Early Conciliation within 3 months minus a day of the dismissal or discrimination, to make a valid unfair dismissal claim in an Employment Tribunal if ACAS Early Conciliation does not resolve the outstanding issues. If an employee is successful in an unfair dismissal claim in an Employment Tribunal, they might be awarded compensation or reinstatement.
If you are concerned that there may be some liabilities that you would like to settle or you want to ensure that confidentiality and IP in your business are protected adequately and post termination restrictions are maintained or even strengthened, you may wish to consider offering the individual a settlement agreement. This may assist in not only preventing ongoing claims against your business and time spent defending them, but can protect your business’ privacy, information and reputation and prevent former employees from causing damage to your business if post-termination restrictions are robust and valid. If you would like to discuss whether a settlement agreement might be a worthwhile consideration in your particular circumstances, our expert employment solicitors can talk you through your options, and if appropriate draft a settlement agreement and negotiate this, on your business’ behalf.
Complaints relating to your redundancy process may be informal and fleeting and just require an explanation to be resolved, or they could be more persistent and require for a formal grievance procedure to be followed. If you are concerned that your business’ redundancy process may have been flawed or that there may be risk of ongoing liability for your business because of your redundancy process or as a result of an employee leaving your business, our employment solicitors can discuss your specific circumstances and advise you of your options to assist you in protecting the future of your business.