If an employee's provisional selection for redundancy is confirmed after the process of consultation is completed and he or she is to be dismissed, the company will need to ensure that it gives the employee the notice of termination to which he or she is entitled (length of notice period ). If the company would prefer the employee not to attend work during the notice period, it may be in a position to ask the employee to take gardening leave. Alternatively, it may decide to bring the employee's contract to an end immediately and make a payment in lieu of notice. (Gardening leave (gardening leave ) and payments in lieu of notice are discussed elsewhere in this Guide (payment in lieu of notice )).
An employee who is told that redundancies are likely or who has been provisionally selected for redundancy may well decide to resign before being given formal notice of dismissal, perhaps because he or she has found a job elsewhere. As the employee has resigned, he or she is not entitled to a statutory redundancy payment or to claim unfair dismissal.
If, on the other hand, the employee resigns after being given notice of dismissal, he or she is still viewed for unfair dismissal purposes as having been dismissed for redundancy. So the employee can still claim unfair dismissal if the company has acted unreasonably in dismissing him or her. An employee who resigns after being given notice of dismissal may also be entitled to a redundancy payment. The company can, however, write to the employee asking him or her to work until the end of the notice period given by the company, and can refuse to make the employee a redundancy payment if he or she does not do so. If the employee is refused a payment in these circumstances, he or she can apply to an employment tribunal, which will decide whether the company should pay the whole or part of the payment, according to what it considers to be fair in the circumstances.