One of the fastest ways to lose an unfair dismissal case is to make an employee redundant and then hire someone else to do the same job. This fundamentally undermines the claim that a genuine redundancy situation existed — which is the entire basis for a lawful redundancy dismissal.
When It Becomes a Problem
A redundancy is genuine when the employer's need for employees to carry out work of a particular kind has ceased or diminished. If the employer then advertises for, or hires someone into, the same or a substantially similar role, the tribunal will question whether a genuine redundancy existed at all.
This is particularly problematic when:
- The new hire is recruited within weeks or months of the redundancy
- The job title, duties, and responsibilities are the same or very similar
- The redundancy appears to have been used to replace one individual with another
When It May Be Acceptable
There are situations where hiring after a redundancy may be defensible:
- The role has genuinely changed — if the business needs have evolved and the new role requires substantially different skills, qualifications, or responsibilities
- Business circumstances changed — an unexpected upturn in demand, a new contract won, or a significant change in business direction after the redundancy took place
- Different type of work — the new role covers different work that was not part of the redundant employee's role
- Significant time has passed — while there's no fixed rule, a longer gap between redundancy and recruitment makes it more defensible
The Real Risk: Sham Redundancy
If a tribunal finds the redundancy was not genuine — that it was used to get rid of a particular person — the dismissal will be unfair. Warning signs include:
- The employee was the sole person at risk (pool of one) without justification
- No fair selection criteria were used
- Alternative employment was not genuinely considered
- A replacement was hired shortly afterwards
- The real reason was performance, personality, or a protected characteristic
If you're considering redundancies and may need to recruit afterwards, get advice first. Our redundancy management specialists can help you structure the process to withstand scrutiny. Talk to us.