Can you make someone redundant and then replace them?Although you cannot make someone redundant and then replace them with someone fulfilling the exact same role, you may be able to replace them in a similar position. The contract must look different and there must be discernible and reasonable changes that require the redundancy and refilling of the position. This could include:
- Filling a new role with someone less skilled and on lower pay, for example, if you want to offer the position as an apprenticeship
- A new role with a different title that requires more experience or training (this is more common in restructuring)
- A role that is similar but has additional requirements
How long before you can replace a redundant position?If you do find yourself in a position to hire someone after making someone redundant, there are no legal requirements for how long you wait to fill that position. You could start advertising immediately provided you have followed all the proper channels for making your redundancy decisions. Care should always be taken when rehiring to make sure you mitigate the risk of unfair dismissal allegations. It is not uncommon for disgruntled previous employees to seek revenge and take their employers to court. Redundant employees have three months in which to make a claim to the Employment Tribunal, so many businesses wait until this window has passed before filling any new positions. If you start advertising for a position that looks the same, you will need to be able to adequately defend the reasons for making someone redundant and then advertising the same job and if you can’t give a defence then you could face legal action. When you make someone redundant, be sure to work carefully to make sure you are covered if you do need to hire a similar role. If you face any unfair dismissal claims, you will need to show:
- That the redundancy was genuine and objective. This is to protect people from being pushed out of jobs for personal reasons
- The redundancy was unavoidable
- The ways the financial position of the business have changed to cause you to make the redundancy and then recruit new workers so quickly afterwards.
Do I have to offer a new position to a redundant employee?Once a person is made redundant, there is no requirement for a business to hire them back – even into a similar role. Even if your financial position suddenly changes and the exact same role becomes available, there is no legal obligation to re-hire the person who previously filled the role. There are pros and cons to getting in new staff so you should think carefully about how you might keep on good staff. There is also an obligation until the last day of employment for you to be looking for a suitable alternative role within your organisation for anyone facing redundancy. If you re-hire redundant staff within a week of their last day of work then their “continuity of employment” is not impacted. If they need a new contract and you would rather start afresh, you will need to wait at least two weeks before their last day of work and new start date. If you would prefer a new hire, or if you find someone better suited to the new role, then you should offer them the job. There is no need to limit yourself to an employee who was made redundant.
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