Redundancy without consultation

This is a really important question, and the short answer is: generally no, but the detail depends on the circumstances, particularly how many employees are being made redundant and how long you have been employed.

Legal position:

Redundancy is a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996, but the employer must still follow a fair process. Consultation is a central part of that fair process. If the employer fails to consult properly, the dismissal is likely to be found procedurally unfair by an employment tribunal.

There are two layers of consultation obligation to be aware of.

1. Individual consultation

Regardless of how many redundancies are being made, your employer should consult with you individually before making you redundant. This means giving you warning that your role is at risk, explaining why, genuinely considering any alternatives to redundancy (such as redeployment), and considering any representations you make. This applies even where only one person is being made redundant. The leading authority on this is the long-established principle that a reasonable employer will consult affected employees before finalising the decision. A failure to do so will usually render the dismissal unfair, unless the employer can show that consultation would have been utterly futile, which is a very high bar.

2. Collective consultation

Where an employer proposes to dismiss 20 or more employees at one establishment within a period of 90 days or less, additional obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 apply. The employer must consult with appropriate representatives of the affected employees (either trade union representatives or elected employee representatives). The minimum consultation period is 30 days where 20 to 99 redundancies are proposed, or 45 days where 100 or more redundancies are proposed. Failure to comply with collective consultation obligations can lead to a protective award of up to 90 days' pay per affected employee.

Qualifying service:

You need at least two years' continuous service to bring an ordinary unfair dismissal claim. If you have less than two years' service, the lack of consultation does not give you a standalone unfair dismissal claim in most cases, unless the dismissal was for an automatically unfair reason such as whistleblowing or asserting a statutory right. However, the collective consultation obligations apply regardless of your length of service.

Practical considerations:

If you are currently facing redundancy and your employer has not consulted you, the following steps are worth considering in roughly this order.

1. Check when you started employment and count your continuous service, as this determines your right to claim unfair dismissal.

2. Note down everything that has happened so far, including any meetings, letters, or conversations, and keep copies of all documents.

3. Raise the issue directly with your employer, in writing if possible. Sometimes a clear letter pointing out the legal obligation to consult is enough to prompt the employer to follow a proper process. You might say something like: "I note that I have been given no opportunity to be consulted about this proposed redundancy. I would like a proper consultation process to take place before any final decision is made."

4. If there is a trade union or employee representative, speak to them.

5. If the employer refuses to consult, or presses ahead without doing so, keep a record of this. It strengthens any later claim.

6. Consider whether you wish to use ACAS early conciliation. Before bringing a tribunal claim, you must notify ACAS, and the early conciliation process can sometimes resolve matters without the need for proceedings.

7. If the redundancy goes ahead without fair consultation, and you have at least two years' service, you may have a claim for unfair dismissal. You would need to present the claim to the employment tribunal within three months less one day of the effective date of termination (with time potentially extended by the ACAS early conciliation period).

8. If 20 or more employees are affected and collective consultation was not carried out, a claim for a protective award can be brought regardless of length of service.

One further point:

Even where the redundancy itself is genuine, a failure to consult properly can make the dismissal unfair. Tribunals take process seriously. In practice, many successful unfair dismissal claims in redundancy cases succeed not because the redundancy was a sham, but because the employer cut corners on consultation, failed to consider alternatives, or applied unfair selection criteria.

If you can share more about your situation, such as how many people are affected, your length of service, and what your employer has told you so far, I can give you more targeted guidance.