Dismissal During Restructure (vs Redundancy)

Restructures often lead to dismissals that aren't redundancies. Understanding the difference is crucial for your rights and potential compensation.

Restructure vs Redundancy

Key Differences

Redundancy	Restructure Dismissal
Job no longer exists	Job continues but changed
Work requirements diminished	Work continues differently
Statutory redundancy pay due	No redundancy pay
Specific redundancy process	SOSR dismissal
Pool selection	May be individual

Why It Matters

Different classification means:

• Different compensation
• Different selection rules
• Different consultation requirements
• Different claim strategies

Some Other Substantial Reason (SOSR)

What Is SOSR?

Dismissal category for:

• Business reorganizations
• Contract changes needed for sound business reasons
• Restructures where role continues
• Dismissals not fitting other categories

Potentially Fair Reason

SOSR is potentially fair if:

• Genuine business need
• Reason is substantial
• Process is fair
• Decision reasonable

Common Restructure Scenarios

1. Role Continues, Terms Change

Your job stays but employer wants to change:

• Salary or benefits
• Working hours or pattern
• Location
• Duties or responsibilities
• Reporting lines

You refuse changes:

• Employer may dismiss
• On SOSR grounds
• Must show business need
• Must follow fair process
• No redundancy pay

2. New Structure, Must Reapply

Company reorganizes:

• Creates new roles
• Requires applications
• Your old role disappears
• But work continues

If you don't get new role:

• May be redundancy
• Or may be SOSR
• Depends on circumstances
• Selection must be fair

3. Role Merged or Split

Your role is:

• Merged with another
• Split between people
• Reorganized significantly

Could be:

• Redundancy if work reduced
• SOSR if work continues differently
• Must assess each case

When Restructure Dismissal May Be Fair

Requirements

1. Genuine business need - real commercial reason
2. Sound business reason - not arbitrary or discriminatory
3. Properly consulted - employee given chance to respond
4. Considered alternatives - other options explored
5. Fair process - warnings, hearing, appeal
6. Reasonable decision - proportionate response

Examples

Scenario	Fair?
Need to cut costs, change terms, you refuse	Potentially
Restructure for efficiency, new roles, fair process	Potentially
Merge roles for business reasons, properly consulted	Potentially
Arbitrary changes without business case	No
Discriminatory restructure	No

When Restructure Dismissal May Be Unfair

Unfair If

• No genuine business need
• Inadequate consultation
• No consideration of alternatives
• Process failures
• Discriminatory selection
• Predetermined outcome
• Real reason is different

Red Flags

Watch for:

• Changes target specific individuals
• No clear business rationale
• Inadequate consultation
• Refusal to consider alternatives
• Inconsistent treatment
• Predetermined outcome

Fire and Rehire

What It Is

Employer:

1. Proposes contract changes
2. You refuse
3. Dismisses you
4. Offers re-engagement on new terms

Controversial Practice

Heavily criticized but:

• Not automatically unfair
• Can be fair if genuine business need
• Must follow very fair process
• Government consulting on restrictions
• Tribunal scrutiny intense

When May Be Fair

Only if:

• Genuine business need demonstrated
• Extensive consultation
• Alternatives genuinely explored
• Changes reasonable and necessary
• Process exemplary
• Last resort

When Likely Unfair

If:

• Just to reduce costs without necessity
• Inadequate consultation
• Alternatives not considered
• Targeting particular individuals
• Process rushed
• Not genuinely last resort

Consultation Requirements

Individual Consultation

For restructure dismissal, must:

• Explain business reasons
• Provide information about changes
• Listen to concerns and objections
• Consider alternatives proposed
• Give time to consider
• Respond to representations

Collective Consultation

If proposing to dismiss 20+ employees within 90 days:

• Must consult collectively
• Minimum 30 days (20-99 dismissals)
• Minimum 45 days (100+ dismissals)
• With employee representatives
• Before final decisions made

Your Rights During Restructure

Right to Refuse Changes

You can:

• Refuse to accept changes
• Not apply for new roles
• Maintain your position
• Assert contractual rights

But employer can then:

• Dismiss you (potentially fairly)
• Make you redundant
• Withdraw changes

Right to Consultation

Entitled to:

• Explanation of business reasons
• Chance to make representations
• Consideration of your views
• Fair hearing if facing dismissal
• Appeal if dismissed

Right to Fair Process

Even in restructure:

• ACAS Code applies (if disciplinary element)
• Fair process required
• Warnings if appropriate
• Disciplinary hearing before dismissal
• Right of appeal

Redundancy Pay Confusion

When You DON'T Get Redundancy Pay

If dismissed during restructure for:

• Refusing contract changes (SOSR)
• Not succeeding in application for new role (capability/SOSR)
• Not fitting new structure (SOSR)

When You MIGHT Get It

If dismissal is actually:

• True redundancy (job no longer exists)
• Employer concedes it as compromise
• Settlement agreement includes payment

Check Carefully

Ask:

• Is role genuinely redundant?
• Or continuing in different form?
• Classification affects compensation

Refusing Contract Changes

Your Position

You can refuse changes because:

• Contract can't be changed unilaterally
• You have right to maintain terms
• Employer must get your agreement

Employer's Options

If you refuse:

1. Accept your refusal - maintain current terms
2. Dismiss and re-engage - fire and rehire
3. Make redundant - if can justify
4. Continue negotiations - seek compromise

Assessing Your Options

Consider:

• How essential is change to employer?
• Is business reason genuine?
• Could you challenge dismissal?
• What are your prospects elsewhere?
• Can you negotiate better terms?

Alternative Roles

Suitable Alternative Employment

During restructure, employer should:

• Consider if suitable alternatives exist
• Offer them to you
• Allow trial period
• Not dismiss if suitable role available

What's Suitable?

Depends on:

• Similarity to old role
• Terms and conditions
• Location
• Status and pay
• Your skills and experience

Trial Period

If offered alternative:

• Entitled to 4-week trial (minimum)
• Can be extended by agreement
• Assess if role suitable
• Can leave during trial

Selection Process

If Multiple Employees Affected

Employer should:

• Use fair, objective criteria
• Apply consistently
• Avoid discrimination
• Consider individual circumstances
• Document decisions

Scoring and Assessment

May involve:

• Skills assessment
• Interview for new roles
• Performance records
• Qualifications
• Experience

Must be:

• Fair and transparent
• Non-discriminatory
• Objectively applied
• Properly documented

Discrimination Risks

Protected Characteristics

Restructure may discriminate if:

Characteristic	Risk
Age	Older workers disproportionately affected
Sex	Women with caring duties disadvantaged
Disability	Criteria don't accommodate disabilities
Pregnancy	Pregnant employees targeted

Must Be Justified

Any potentially discriminatory impact must be:

• Proportionate means
• To legitimate aim
• No less discriminatory alternative

Challenging Restructure Dismissal

Potential Claims

• Unfair dismissal (if 2 years' service)
• Wrongful dismissal (breach of contract)
• Discrimination (if protected characteristic)
• Failure to consult (collective consultation)
• Automatically unfair (if protected reason)

Grounds to Challenge

• Not genuine business need
• Process unfair
• Inadequate consultation
• Discriminatory
• Selection unfair
• Predetermined outcome
• Actually a redundancy

Evidence to Gather

• Business case for restructure
• Consultation documents
• Selection criteria and scores
• Comparable treatment
• Communications
• Contract terms
• Impact assessments

Compensation Differences

Redundancy

If genuine redundancy:

• Statutory redundancy pay
• Notice pay
• Compensatory award (if unfair)
• Total often higher

SOSR Dismissal

If not redundancy:

• No redundancy pay
• Notice pay
• Compensatory award (if unfair)
• Usually less overall

Why Classification Matters

Could mean:

• Thousands of pounds difference
• Worth challenging classification
• Get advice on which applies

Negotiation and Settlement

Settlement Packages

Employer may offer:

• Enhanced terms to accept changes
• Compensation to leave voluntarily
• Settlement agreement with payment
• More than statutory minimums

Negotiating Position

Stronger if:

• Business case weak
• Process has flaws
• Discrimination concerns
• Long service
• Difficult to replace you

Settlement Agreements

Consider:

• What's on offer
• What you might get in tribunal
• Costs and stress of claim
• Time to find new role
• Tax treatment of payments

Practical Tips

For Employees

During Restructure:

• Engage in consultation
• Ask questions about business need
• Propose alternatives
• Don't refuse changes lightly
• Get advice on your position
• Document everything

If Facing Dismissal:

• Understand if redundancy or SOSR
• Check consultation was adequate
• Look for discrimination
• Consider settlement
• Know tribunal time limits
• Seek legal advice

For Employers

Planning Restructure:

• Have clear business rationale
• Consider alternatives thoroughly
• Plan consultation carefully
• Identify affected employees
• Assess discrimination risks
• Document decision-making

Implementing:

• Consult meaningfully
• Follow fair process
• Consider individual circumstances
• Apply criteria consistently
• Offer alternatives where possible
• Get legal advice on complex cases

Summary

Key Points

• Restructure dismissals are often SOSR, not redundancy
• Different reason means different rights
• No redundancy pay for SOSR
• But must still be fair dismissal
• Consultation essential
• Fire and rehire controversial
• Can refuse contract changes

Restructure Is Not Always Redundancy

Redundancy if:

• Job no longer exists
• Requirements diminished

SOSR if:

• Job continues but changes
• Refuse new terms
• Don't fit new structure

Fair Dismissal Requires

• Genuine business need
• Fair consultation
• Proper process
• Reasonable decision
• Alternatives considered
• Non-discriminatory

Know Your Position

• Check contract terms
• Understand employer's rationale
• Assess fairness of process
• Consider discrimination angle
• Know what compensation you'd get
• Seek advice before accepting or refusing

Restructures are complex. The line between redundancy and other dismissals can be blurred. Understanding the difference and ensuring fair process is vital to protecting your rights and maximizing any compensation.