‘To what extent do the statutory provisions on redundancy fairly balance the employer’s need for flexibility and an employee’s desire for job security?’

Discuss.

• You should point out that the individual rights depend on a qualifying period of service and that the collective provisions are only triggered if there is proposal to dismiss 20 or more employees at one establishment. You might refer to Rockfon A/S v Specialarbejderforbundet i Danmark Case C-449/93[1996] on p 154.
• You should indicate that redundancy is a potentially fair reason for dismissal but there is no scrutiny of how a redundancy situation arose. Although there are procedural safeguards relating to selection, warnings and consultation, s 98(4) ERA protects employers who act within a range of reasonable responses. You might refer to Anglian Homes Ltd v Kelly [2004] on p 109, Williams v Compair Maxam [1982] on p 150 and Whiffen v Milham Ford Girls School [2001] on p 151.
• Even if a dismissal is found to be unfair, re-employment cannot be ordered in a redundancy case (unless the case is one of unfair redundancy dismissal).
• You should state that statutory redundancy payments are at a low level and can be denied if an offer of suitable alternative employment has been unreasonably refused. Although a four-week trial period is available, an employee will still find it difficult to know the consequences of declining an offer.
• You should observe that the collective consultation requirements may result in job losses being avoided. However, an employer’s failure to comply with s 188 TULCRA does not nullify any dismissal that takes place. Thus, employers may simply choose to expose themselves to a protective award as part of the price for achieving job cuts. You might refer to Middlesbrough Council v TGWU [2002] on p 154.
• You might conclude that employers who act reasonably in relation to individual employees and comply with s 188 (where applicable) are unlikely to have to pay more than a statutory redundancy payment.
• For more examination material you should read Questions and Answers Employment Law 2018 by Roseanne Russell, published by Oxford University Press.