Redundancy rights in the UK: busting the myths

Employees have a number of rights when employers try to wield the axe, but many are not entirely clear about what they are entitled to when threatened with redundancy. As a result, myths abound. Here are some common misconceptions and the truth behind them.

Myth I will get a reference when I leave.

Reality There is no obligation on an employer to provide a reference for a worker, let alone a favourable one. Employers can give a negative reference if they believe it to be fair and accurate. Most references are now factual only (dates of employment, job title etc), but there is still no obligation to provide this.

Myth The notice period in my contract of employment is the most my employer has to pay me.

Reality No it isn't. You are entitled to a statutory minimum of one week's notice for every year worked, up to a maximum of 12 weeks, or your contractual notice, whichever is the longer. If, for example, you have worked for eight years your notice would be the statutory minimum of eight weeks, regardless of whether your contract provides a lesser period.

Myth I am entitled to statutory redundancy pay if I am made redundant.

Reality You are only entitled to statutory redundancy pay once you have worked for your employer for two years. If your employer has their own enhanced redundancy policy, however, you should be treated in accordance with that.

Myth If I am sacked I can claim unfair dismissal.

Reality Not necessarily. If you started work with your employer before 6 April 2012 you need one year's service under your belt before you can make an unfair dismissal claim. If you started work on or after this time you need a minimum service of two years. The minimum period does not apply in certain circumstances, such as where a discrimination claim is being made.

Myth I can take my clients with me when I switch jobs.

Reality Check the terms of your contract of employment first. Many employers reserve post-termination covenants to stop you doing so, and such restrictions are generally drafted to last between three and 12 months after the employment has ended. Not all covenants are well drafted, though, and some may not be enforceable if they are too wide. It is always best to take advice if you are not sure.

Myth I will still receive my bonus for the work I've done before I leave.

Reality Not necessarily. Many bonus clauses in your contract of employment state that you need to still be employed at the "bonus payment date" and not working under notice at that time to be eligible for a bonus payment. You need to check your contract.

Myth I can be easily made redundant or forced to retire once I am 65.

Reality Not any more. Your employer could be guilty of age discrimination if your age is the sole reason for dismissing you.

Myth I cannot be made redundant if I am pregnant, on maternity leave or off work due to an illness.

Reality Yes you can, provided the role has genuinely ceased to exist and you have not been selected because of your pregnancy, maternity or illness alone. Your employer still has to follow a proper process (including consultation) and you should also not have been disadvantaged by the redundancy selection criteria, otherwise you may have a claim for indirect sex or disability discrimination. There is no qualifying period of service for a discrimination claim.

Myth All of my social media contacts belong to me.

Reality Yes, in the main, but some employers now have social media policies in place which attempt to place restrictions on the ownership of those contacts – especially on professional networking sites such as LinkedIn. This mostly arises in industry sectors such as recruitment where those contacts are central to the employer's business, and provided by them to their employees to generate business.

Myth My employer can make me redundant because of my performance.

Reality If your performance is the real reason for why your employer wants to terminate your employment then it is not a redundancy and your employer is at risk of a claim. For capability dismissals employers should follow the Acas code of practice, which provides for a number of warnings to be given and an opportunity to improve. It is for this reason that some employers will want to bypass this potentially lengthy process and label your dismissal a "redundancy", but with the full intention of replacing you.

Myth Last in is first out.

Reality Length of employment used to be one of the most common ways of objectively determining who to make redundant. It isn't any more as it is not generally considered fair (or, indeed, legally safe for employers) when used as the sole selection criteria. Most employers now generally either avoid it or use length of service as only one criteria out of many.