Fair Selection Process In Redundancy Dismissals

As an Employer, simply following the selection criteria for Redundancy could still mean that you may be faced with an Unfair Dismissal claim being brought against you!

Selection criteria for redundancy

Employers should consult affected employees regarding the selection criteria and the criteria must be consistently applied and be objective, fair and consistent. Examples of such criteria are:

• Attendance record (you should ensure this is fully accurate and that reasons for and extent of absence are known).
• Disciplinary record (you should ensure this is fully accurate).
• Skills or experience.
• Standard of work performance.
• Aptitude for work.

• give as much notice as possible of impending redundancies
• establish objective selection criteria
• where there is a trade union, seek to agree any selection criteria
• ensure selection is done fairly in accordance with the criteria
• ensure there is adequate consultation with employees
• consider any representations made (either by employees themselves or their representatives)
• consider the alternatives to redundancies including offering alternative employment

Formal qualifications and advance skills should be considered, but not in isolation.

The Employment Appeal Tribunal (EAT) has considered what employers have to do to ensure a fair selection process in redundancy dismissals.

It is notoriously easy for an employer to fall foul of the law when carrying out redundancies. This is because the requirements of a fair procedure listed above in a redundancy dismissal are more exacting than for other types of dismissal.

In the case of Pinewood Repro Ltd T/A County Print v Page, a tribunal in Manchester found that the employer had failed to conduct adequate consultation with the claimant, Mr Page, because they had failed to provide him with an adequate explanation of why he had received lower scores than the two other people in the pool for redundancy. The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding of unfair dismissal.

The employer found itself on the back foot in this case because it was ultimately unable to justify its selection of Mr Page for redundancy by showing its marking of him was accurate: no one had ever raised any issues with him about his work and there was no regular appraisal system.

Equally, it could not show its marks in respect of the other two candidates in the pool were accurate due to the lack of appraisal system.

Where an employer uses a more subjective criterion such as ‘flexibility’, it needs to be very sure it can back up its scoring with evidence, and this evidence should be provided if challenged by the employee.

If you would like more information, you can contact us here. We would be more than happy to help you answer any questions.