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For a senior employee, redundancy is rarely just about a final paycheck. It represents a significant disruption to a career built over decades, affecting professional reputation, pension contributions, and future employability. In many cases, senior professionals: directors, department heads, and senior managers: are targeted during "restructuring" not because their role is truly redundant, but because of their higher salary or a shift in company culture.

At Tyndel Solicitors, we understand that for a senior executive, a "fair process" isn't a luxury: it is a legal requirement. When the redundancy process is flawed, it can often be a "sham" designed to bypass the protections of the Employment Rights Act 1996. This guide explores your rights, the necessity of a fair selection process, and how to identify when a redundancy is actually an unfair dismissal in disguise.

What Constitutes a Genuine Redundancy?

Before examining the process, we must define the legal threshold. Under UK law, a redundancy is only genuine if the employer can prove one of three scenarios:

1. Business Closure: The employer has stopped, or intends to stop, carrying on the business altogether.
2. Workplace Closure: The employer is closing the specific location where you work.
3. Diminished Requirement: The need for employees to carry out work of a particular kind has ceased or diminished.

For senior employees, "diminished requirement" is the most common battleground. A company might claim they are "flattening the management structure," but if your responsibilities are simply redistributed among three new junior managers, the "work of a particular kind" hasn't actually diminished; it has just been repackaged. If your role: or a role substantially similar to it: still exists, the redundancy may be legally invalid.

The Importance of Fair Selection

When a business needs to reduce its headcount, it cannot simply handpick the employees it wants to lose. It must follow a fair selection process. This involves two critical stages: the "pool" and the "criteria."

1. Defining the Selection Pool

The "pool" is the group of employees from which the redundant individuals will be chosen. A common tactic to remove a senior employee is to create a "pool of one." While this is legally possible if a role is truly unique, it is often challenged. If other managers perform similar tasks or have interchangeable skills, they should likely be in the pool with you. Excluding them may suggest the process was "pre-determined," a major red flag in employment law.

2. Objective Selection Criteria

Once the pool is established, the employer must apply objective, non-discriminatory criteria. Fair criteria often include:

• Skills, qualifications, and experience.
• Standard of work (based on historical appraisals, not recent "subjective" opinions).
• Attendance and disciplinary records (excluding absences related to disability or maternity).

Criteria that are "subjective": such as "attitude," "flexibility," or "fit": are highly susceptible to bias and are frequently used to push out senior staff who may be perceived as "too expensive" or "too set in their ways."

Note: The image above highlights the shift from subjective bias to objective standards required by law.

Meaningful Consultation: Not a Tick-Box Exercise

One of the most frequent mistakes employers make is treating the consultation period as a formality. For a redundancy to be fair, the consultation must be "meaningful." This means it must happen while the proposals are still at a formative stage. If the decision has already been made and you are simply being told the outcome, the consultation is a sham.

Individual vs. Collective Consultation

The rules differ based on the number of redundancies:

• Individual Consultation: Even if you are the only person being made redundant, your employer must meet with you to explain the situation, discuss the selection criteria, and explore alternatives.
• Collective Consultation: If the employer is making 20 or more people redundant within a 90-day period at one establishment, they must consult with employee representatives (or a trade union). For 20–99 redundancies, this must start at least 30 days before the first dismissal. For 100+ redundancies, the period is 45 days.

Failure to follow collective consultation rules can lead to a "Protective Award," where an Employment Tribunal can order the employer to pay up to 90 days' gross pay per employee.

Redundancy as a Disguise for Unfair Dismissal

For senior staff, redundancy is sometimes used as a convenient "no-fault" way to terminate employment when the real reason is related to performance, conduct, or even whistleblowing. This is known as a "sham redundancy."

The "Red Flags" of a Sham Redundancy

• The "New" Role looks familiar: You are told your role is redundant, but a week later, the company advertises a "Head of Strategy" role that covers 90% of your old "Director of Planning" duties.
• Lack of Evidence: The employer claims "cost-cutting" is the driver, but the company has just announced record profits or hired five new senior executives.
• Targeted Selection: You are the only person over 55 in the selection pool, or you recently raised a grievance or whistleblowing concern.
• No Search for Alternatives: The employer makes no effort to find you "suitable alternative employment" within the wider group, even if roles are available.

If any of these apply, you may have a claim for unfair dismissal. Because senior employees often have notice periods of 6 to 12 months, the financial stakes of a successful claim: or a negotiated settlement: are significant.

Suitable Alternative Employment

An employer has a legal duty to consider whether there are any alternative roles you could perform. For senior employees, this is often complicated. You are not obliged to accept a role that is a significant "step down" in status or pay, but the employer must offer it if it exists.

If you are offered a role that is "suitable," and you unreasonably refuse it, you may lose your right to statutory redundancy pay. However, "suitability" is subjective; it looks at the pay, status, hours, and location compared to your current role. Senior employees are also entitled to a four-week trial period in any new role to decide if it is truly a fit.

Taking Action: Protecting Your Career

If you are a senior professional facing redundancy, you should not accept the first offer presented to you without legal scrutiny. Senior roles often involve complex civil litigation issues, particularly regarding share options, deferred bonuses, and restrictive covenants (non-compete clauses).

Steps to take:

1. Request everything in writing: Ask for the business case for redundancy and the specific scoring used in your selection.
2. Challenge the pool: If you believe you were unfairly isolated, ask why colleagues with similar skills were excluded.
3. Scrutinize the consultation: Keep detailed notes of every meeting. Were your suggestions for cost-saving or role-merging actually considered?
4. Check your contract: Ensure your statutory redundancy pay is supplemented by any contractual enhancements you are owed.
5. Seek Specialist Advice: Before signing a Settlement Agreement (which is standard for senior redundancies), you are legally required to seek independent legal advice.

How Tyndel Solicitors Can Help

Navigating the end of a senior career phase requires more than just a general understanding of the law; it requires a strategic approach to protect your future. At Tyndel Solicitors, we specialize in high-stakes employment matters, from GMC regulatory services for doctors to executive-level redundancy disputes.

We help senior employees:

• Identify whether their redundancy is a "sham."
• Negotiate enhanced severance packages and settlement agreements.
• Challenge unfair selection criteria and discriminatory practices.
• Review restrictive covenants to ensure you can move to your next role without delay.

Your career longevity depends on how you exit a role as much as how you entered it. If you suspect your redundancy process is unfair, contact our practice areas team today for an expert consultation.

Conclusion

Redundancy is a technical process, but for a senior employee, it is deeply personal. By understanding the requirement for fair selection, the necessity of meaningful consultation, and the hallmarks of a disguised dismissal, you can ensure your rights are protected. Don't let a "restructure" undermine years of professional achievement.