How long does an employer need to wait before re-employing an employee whose role was made redundant?
Once employment has terminated by reason of redundancy, an employer may re-employ a redundant employee without obligation to wait a certain period of time before offering re-employment. In addition, the employer is under no obligation to offer the redundant employee his or her job back and can instead, offer the role to someone else.
However, an employment tribunal will examine the full period from the start of redundancy consultation to assess whether a redundancy situation was genuine. Should someone else be employed shortly after a redundancy situation has occurred, this may cast doubt on the authenticity of the redundancy should the (redundant) employee challenge it by bringing a claim of unfair dismissal. In these circumstances, the employer would need to be able to demonstrate that the redundancy situation existed at the time the redundant employee was dismissed and it was only after that date that the organisation’s economic position changed.
If the employer wishes to re-employ a redundant employee, but also wants to ensure that their continuity of employment is broken by the redundancy, there should be a clear calendar-week break (starting on a Sunday) between the termination of one period of employment and the commencement of the new period. Any continuity of service that there might otherwise have been will normally be broken – provided that there has been no agreement between the parties to preserve continuity and the new contract makes clear that it is a new period of employment. To be cautious, a minimum two-week break in service is advisable.
If an offer of new employment is made before the original employment has ended, i.e. if the employee is given notice of redundancy but, before the employment ends, the employer offers them a new job, the situation is different. In these circumstances, continuity will be preserved if the new job starts no more than four weeks after the redundancy date.
For statutory redundancy payment purposes, continuity of employment is broken where a redundancy payment has been paid to the employee and the employee is then re-engaged under a new contract of employment. This prevents the employee’s service counting twice for statutory redundancy payment purposes.
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