What are the legal implications of employing temporary workers after making redundancies? Nick Hobden, a partner and head of the employment department, and Ben Stepney, a solicitor at Thomson Snell and Passmore provide the answers...

An employer can only make staff redundant if a genuine redundancy situation arises. A genuine redundancy situation can arise where there is a business closure, a workplace closure or a reduced requirement for employees.

As part of a fair redundancy consultation process, employers must offer any suitable alternative positions to those employees at risk of redundancy.

It is fair to say that an employer who decides to make permanent employees redundant, with a view to using cheaper temporary workers to carry out the same jobs, is unlikely to be able to show that there was a genuine redundancy situation in the first place. Indeed, even if business unexpectedly picks up soon after making redundancies, employers who then take on temporary workers may expose themselves to an increased risk of unfair dismissal claims.

Of course employers are not expected to know exactly what the future may hold.

If an unforeseen upturn quickly follows redundancies, the employer is within its rights to recruit workers, whether temporary or permanent.

But the key question is whether, at the time the redundancies were made, there was a genuine redundancy situation.

Where an employer is concerned about taking on new staff soon after a redundancy, one way to minimise the risk is to wait at least three months. This is because unfair dismissal claims can normally only be made within three months of dismissal.

Employers can reduce risks further by ensuring the temporary workers' roles are substantially different from ones previously made redundant. This increases the chances of arguing there was a genuine redundancy situation. It also chips away at any argument that the employer ought to have offered the new roles to its previous employees.

Businesses subject to fluctuations in workload could always try to avoid these issues altogether by ensuring they have the right to temporarily lay off permanent staff or use short-time working during quiet periods.

Provision must be made in the employment contract, or the employer will need to seek the consent of employees.