Is an employer obliged to wait a certain period of time before re-employing an employee who was dismissed for redundancy?
Once employment has terminated by reason of redundancy, if the economic situation suddenly changes and the employer then needs to employ someone, it is under no obligation to offer the redundant employee his or her job back. The employer is entitled to recruit someone else. Having said that, if the employer does wish to re-employ the redundant employee, it may do so and there is no obligation on it to wait a certain period of time before offering re-employment to that individual.
When assessing whether or not there was a genuine redundancy situation for the purposes of the fairness of the dismissal, an employment tribunal will look at the entire period from the start of redundancy consultation until the employee's employment terminates on the ground of redundancy. If the employer engages someone else in a particular role shortly after making an employee redundant from that role, this may cast doubt on the genuineness of the redundancy should the employee challenge it by bringing an unfair dismissal claim. In these circumstances, the employer would need to demonstrate that the redundancy situation was still subsisting at the time the redundant employee was dismissed and it was only after that date that its economic position changed.
If the employer does wish to re-employ the redundant employee but also wants to ensure that his or her continuity of employment is broken by the intervening 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 err on the side of caution, a minimum two-week break in service would be advisable.
The position is different if the offer of new employment is made before the original employment has ended, ie if the employee is given notice of redundancy but, before the employment ends, the employer offers him or her a new job. 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.