Redundancy when job role still exists

This is a really important question and one that comes up frequently. The short answer is: if your job still exists and is still being done by someone else, then what has happened to you is very unlikely to be a genuine redundancy. That matters because it could mean any dismissal is unfair.

Legal position:

Redundancy is defined in section 139 of the Employment Rights Act 1996. A genuine redundancy arises where the employer's need for employees to carry out work of a particular kind has ceased or diminished, or is expected to do so. This can also apply where the workplace itself is closing or relocating.

If your role still exists, is still being performed, and the volume of that work has not reduced, then the statutory definition of redundancy is not met. In that situation, calling a dismissal a "redundancy" does not make it one. Employment tribunals look at the substance of what has happened, not just the label the employer has used.

Common situations where this arises:

1. The employer dismisses you but hires someone else to do the same job, possibly on different terms or a lower salary.
2. Your work is redistributed among remaining staff, but the overall volume of work has not actually diminished.
3. The employer simply wants to replace you with someone they prefer and dresses it up as a redundancy.
4. A reorganisation changes job titles or reporting lines, but the core duties remain the same.

In scenario 1 especially, this is likely to be a sham redundancy and potentially an automatically unfair or ordinary unfair dismissal.

However, there are some situations where the picture is more nuanced:

Where there has been a genuine reorganisation and the nature of the role has materially changed, for example through a restructure that merges roles or creates a genuinely different position requiring substantially different skills, this can amount to a valid redundancy even though some of the old duties survive in the new role. The question is whether the employer's requirement for employees to do work of a particular kind has diminished.

Similarly, where the same overall work is being done by fewer people because of efficiencies or restructuring, there may still be a genuine redundancy situation even though the work itself has not disappeared entirely.

What you can do:

1. Look carefully at the stated reason for your redundancy. Ask your employer for a clear written explanation of why your role is redundant, what has changed, and whether anyone is taking over your duties.

2. Compare your role before and after. If the same job is being done by a new hire, or your duties have simply been handed to a colleague with no real reduction in the need for that work, this undermines the redundancy.

3. Check whether a fair process was followed. Even where a genuine redundancy exists, the employer must follow a fair procedure, which normally includes consultation, consideration of suitable alternative employment, and fair selection criteria if choosing between employees in a pool.

4. Consider whether there is any other motive. If the real reason for your dismissal is something else, such as your age, a disability, pregnancy, whistleblowing, or simply personal dislike, then the redundancy label is a cover and you may have a claim for unfair dismissal or discrimination.

5. Consider your qualifying service. To bring an ordinary unfair dismissal claim, you generally need two years' continuous employment. However, if the dismissal is for a reason that is automatically unfair or discriminatory, the two-year qualifying period does not apply.

6. Time limits matter. You have three months less one day from the effective date of termination to bring a claim to the employment tribunal, and you must first notify ACAS for early conciliation.

Practical next steps:

If you believe your redundancy is not genuine, start by raising this with your employer in writing, including through any internal appeal process. Keep copies of your job description, any recruitment adverts for similar roles, and any evidence that your work is continuing.

If the employer does not resolve the matter, contact ACAS to begin early conciliation. If that does not produce a resolution, you can then consider an employment tribunal claim for unfair dismissal.

If you want me to help you think through the specific facts of your situation, feel free to share more detail and I can give you a more tailored view.