This is often a live issue in redundancy situations. At the moment, with the number of redundancies rocketing skywards, it is a question that is being put to me time and again. Quite often the employer’s rationale for placing a person “at risk” of redundancy can look shaky.
The definition of redundancy is found at s.139 of the Employment Rights Act 1996. It is defined thus;
(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—
(a) the fact that his employer has ceased or intends to cease—
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business—
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish.
(my emphasis above)
There are several possible bases, within the above definition, for an employer to state that a role is no longer required. In brief it will be either because the employer is ceasing that type of work completely or at that particular location. So, for instance, outsourcing a function to India could be capable of being a redundancy situation for the UK workers involved, as would be the case where an employer decides to stop trading completely or to cease trading in a certain type of goods. However, if an employer decides that they need to reduce headcount, as is often the case, problems can arise over how the unlucky candidates are selected.
I have written about selection processes before so won’t repeat it again here. The question which does get posed is whether the role of an employee placed “at risk” is really redundant. The key words are “work of a particular kind”. What exactly does that mean? In a 2002 case the Court of Appeal decided that it was a question of fact and not law. In other words, each case will turn on its own facts. In that particular case (Shawkat v Nottingham City Hospital NHS Trust  ICR 7) the Court held that because a restructuring might require the employee to do different work to that which he was doing previously, that fact (on its own) was not conclusive evidence of the employee’s redundancy.
The facts in Shawkat were these. Dr Shawkat was a thoracic surgeon. The NHS Trust for whom he worked built a new facility and merged the cardiac and thoracic units. This required Dr Shawkat to do cardiac as well as thoracic surgery. He didn’t want to do this and was dismissed. He succeeded with a claim for unfair dismissal. However, he also claimed that the reorganisation meant that he was redundant and thus due a redundancy payment. It was on this point that he ultimately lost, before both the Employment Appeal Tribunal and the Court of Appeal. The EAT decided that the words “work of a particular kind” referred to the needs of the employer’s business and it didn’t mean the particular type of work that the employee did, on the basis that if it did an employer would never be able to reorganise itself if it required employees to do different types of work.
Dr Shawkat might have succeeded if the Trust had announced it was reducing the amount of thoracic surgery undertaken or that it was closing it altogether. He had been replaced by a surgeon doing cardio-thoracic work and the job had changed but the crucial factor was the amount of thoracic work had not diminished.
Those facts are rather particular. What comes out of the case is that in examining whether an employee has been dismissed for redundancy an ET will probably take a wider interpretation of what is meant by work of a particular kind and consider whether it has reduced. If an ET decides that the amount of work has not diminished (or ceased) then the reason for dismissal (and remember that redundancy is but one reason for dismissal) may then be unfair.
In other words, if you have been put at risk of redundancy and you think that your role is continuing, albeit perhaps with a different title or some minor additional responsibilities tacked on, you may have an argument for saying that your role is NOT redundant and that if your employment is terminated it will amount to an unfair dismissal. Problems often arise where job descriptions are vague and ill drafted. Employees can argue that the new role is effectively what they were doing already and the employer will disagree. That is a dispute that will only be resolved by an ET in the end.
As ever, if in doubt about your own position, seek legal advice. I can be contacted on 0207 464 8433 or at email@example.com