Can an employer make permanent staff redundant instead of agency staff?

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Yes, an employer can continue to retain agency staff in the same or similar roles to permanent employees who are being made redundant. By doing so, however, it does raise the question of whether or not the redundancies are genuine or necessary, and many employers will come unstuck if they cannot justify retaining agency staff in this way.

After all, an employer would have to justify why fewer people were required to carry out the work, but this is not an easy task if it continues to use agency workers. The position may be different if the employer could show that the agency staff were being retained only, for example, to conclude short term work. At the same, and employer would be saying that permanent employees are not required in those roles under the long-term restructure of the business.

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