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Can an employer recruit after a redundancy and, if so, when?

05 January 2022

There is no set period for which an employer cannot recruit after redundancies have been made.  However, depending on the facts, recruiting for the same role as that of the ex-employee could compromise the fairness of the dismissal.

Genuine redundancy

The dismissal could be unfair if the role is actually the same role as the ex-employee performed.  I.e. there was not a genuine redundancy situation at the time of the dismissal.  If that were the case, the ex-employee could argue the dismissal was unfair because the employer could not rely on redundancy as the reason for dismissal.

Recruitment freeze as an alternative to redundancy

The ex-employee would also need to consider whether, even where there was a genuine redundancy situation, the employer had compromised the fairness of the dismissal by failing to consider a recruitment freeze as an alternative to redundancy.

A dismissal is more likely to be considered fair if the employer has considered whether it is possible to avoid or reduce the need for dismissals. Indeed, this is one of the matters on which employers must consult employee representatives in a collective redundancy situation. Options that employers might consider to reduce cost without compulsory redundancies include: Reducing headcount - voluntary redundancy, recruitment freeze, withdrawing new job offers, deferring new joiners, reducing agency staff, redeployment or secondment of staff, early retirement.​

It would often be the case that an employer would impose a recruitment freeze either before the commencement of a redundancy exercise, or there is evidence that it would not make the required savings quickly enough so it has been considered and rejected as an alternative (albeit consultation on alternatives may require further discussion on that point). 

It is entirely fact dependent, but a tribunal may ask questions where an employer has not addressed it mind to alternatives to redundancy such as a recruitment freeze until after selection has been made.  In most situations there will be no question that there should not be a new recruitment exercise commenced ​in the area of the business considering redundancies during the redundancy exercise.  Otherwise suitable alternative employment may be offered to an external candidate during the process, denying the subsequently redundant candidate the opportunity to apply for that role.

Suitable alternative employment

The dismissal could also be unfair if the employer should have offered the new role to the ex-employee as alternative employment.  The dismissal of an employee for redundancy may be unfair if the employer fails to make a reasonable search for suitable alternative employment. The position would depend greatly on the nature of the new role compared to the redundant role and whether it could be deemed to be the same or similar or that there is a crossover of skills that the employer should have considered.

Of course, it is possible that there was both a genuine redundancy situation and that there is now a new role.  For example, shortly after the employee was made redundant, the employer wins new business it wasn't expecting (or, as you suggest, a colleague resigns) meaning that the employer needs to recruit.  I.e. there was a legitimate redundancy situation that then disappeared after the employee was dismissed.  In that scenario, if their employment had already terminated at the point at which the new role arose, then there would be no obligation on the employer to offer it the former employee as alternative employment.

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