Redundancy - selection criteria and procedures

Employers must use criteria for selection for redundancy which are not discriminatory on the grounds of any of:

• age, disability, gender reassignment, marriage or civil partnership, maternity or pregnancy, race, religion or belief sex, sex, sexual orientation
• trade union membership
• the refusal of a "protected shop worker" to work on Sundays.

The usual rules on discrimination apply - an employer cannot directly discriminate in selection but may be able to indirectly discriminate, for example, by deciding to make part-time staff redundant rather than full-time employees. However, according to a ruling in one ECJ case the employer must objectively justify this decision.

The selection of two employees because they had been leading strike activists comes within the definition of an unfair dismissal. Selecting someone for redundancy because they spent too much time on union activities is automatically unfair, even in cases where the employer has no malice or intent to expel the employee because of trade union activities.

Equally, an employer cannot evaluate an employee based on skills exhibited while conducting work as a safety representative.

It is advisable for union representatives to exercise caution if transferred to alternative work that allows them to fulfil their trade union duties. In one case the Employment Appeal Tribunal (EAT) ruled that it was fair to select the rep for redundancy when the company no longer required the alternative work, even though there was still demand for the work in his primary position.

Tribunals can award compensation to take account of the fact that an employer has failed to adhere to the proper selection procedure. In the leading Polkey case the House of Lords ruled tribunals should reduce compensation where it could be demonstrated that had a proper procedure been adopted, the individual would have been selected in any case.

However, in another case the Court of Session in Scotland ruled that it was necessary to distinguish between a ’procedural error’ (where compensation could be reduced under the Polkey test) and an intrinsically unfair procedure, where it would not apply. A flawed selection procedure rectified on appeal is unlikely to lead to an award of additional compensation.

A proposal not to select an employee for redundancy only if they designate an alternative candidate has also been judged to be an unfair dismissal.

Employers can exploit criterion like absenteeism to select so long as, in doing so, they do not transgress discrimination legislation.

Tribunals will usually assess whether employers have adhered to previously adopted criteria. Most organised workplaces will have an agreed procedure for redundancy selection but the Deregulation and Contracting Out Act 1994 removed the presumption that a dismissal is unfair where the employer ignores the agreed selection procedure.

In one case the EAT determined that there was no legal duty on an employer to disclose the evaluations of those employees not selected.

The EAT has ruled that while there is some scope for subjectivity in determining redundancy selection, it is not in itself the grounds for a challenge; and the use of criteria like length of service should be totally avoided, although first in, last out may be used where it is one of a number of criteria.

"Employers do have duties in relation to selection. For example, a decision to make a long-standing employee redundant, when a job he was temporarily attached to ended, was held, by the EAT, to amount to an unfair selection, in so far as the employer should have considered selecting other similarly graded employees with less experience or qualifications".

Requesting volunteers first is not part of a selection procedure itself and is therefore not constrained by the rules of the selection procedure. Similarly, the refusal of a company to ask for volunteers before commencing its selection procedure is insufficient justification to mount a claim. Nor would the employer’s decision not to request volunteers (even where they might exist) where only the work of one employee had diminished.