26th April 2022

Will Predicted Redundancies Drive up Employment Claims?

After my two hour commute to work this morning (it wasn’t all that bad as I had Matthew McConaughey for company), you might be thinking that the last thing I wanted to do when I arrived at the office was to get into early conciliation negotiations with an Acas conciliator.  I thought so too, until my conversation with a lovely conciliator called Carol where we both sympathised with the other about our recent holidays being an all too distant memory. She also confirmed what I suspect anecdotally; cases may be on the rise.

When an employee, or ex-employee, wants to make a claim against their employer, or ex-employer, at an Employment Tribunal, in most cases they must notify Acas first. This is what is known as Acas early conciliation (EC). Acas offers EC to try and reach an agreement between the parties to avoid the employee making a claim. If agreement can’t be reached, the claimant then has their EC certificate number allowing them to submit their claim (an ET1 form) if they wish to.

Whilst the ‘Early Conciliation and Employment Tribunal Cases Data from 2021 to 2022’ reveal that there was a drop in EC numbers in October to December 2021, Employment Tribunal claim form receipts increased in October to December 2021 compared to the previous quarter. Worryingly, an Acas survey has revealed nearly 1 in 5 employers are looking to make redundancies in the next year and 3 in 10 organisations that employ more than 250 employees are likely also likely to make redundancies in that same time frame.  If this is correct, not only Carol and I, but many employers are likely to get even busier.

However, the thing that should be keeping us busy is not the negotiation of claims, but what is needed to be done to avoid those claims in the first place. Redundancy can be a sensible commercial option, but it should never be used as a smoke screen for what should really be, for example, a capability or conduct dismissal. It’s therefore really important to take advice on what makes for a genuine redundancy situation. It’s also really important to be aware of what makes for a good redundancy procedure including making genuine efforts to find ways to avoid or minimise the impact of redundancies and allowing enough time. All too often employers try to rush through a redundancy situation making it difficult to later argue that a meaningful consultation took place.

So, if like me, you should find making a long commute anytime soon, read Acas’ survey results and if you are thinking about making redundancies in your workplace give me a call to discuss what you can do to avoid potential claims. Mathew McConaughey can wait.

If you would like to read Acas’ survey results you can find them here https://bit.ly/37L48AL. If you would like advice about redundancy or any other employment law related matter please contact Blackadders Employment Team operating across Aberdeen, Dundee, Edinburgh, Glasgow and Perth. You can also join Donna Reynolds and Blair Duncan at their next Ask the Expert. Details can be found here

Donna Reynolds - employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law


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