How to Ensure Fairness in Redundancy Selection

The redundancy process is complex for any business. It’s also a difficult one—particularly when it comes to choosing employees to dismiss.

However, you can take steps to make your decisions fair. And that’s what we explore in this guide.

Before we do, don’t forget you can contact us on 0800 028 2420 if you need support on this complex employment law matter.

And if you’re facing redundancies due to coronavirus, we have business advice on reopening as well as redundancy legal advice. We also have other support on how you can avoid dismissing employees.

But if you must go ahead, we provide details on how to manage the crucial process of selecting staff fairly.

Making your redundancy selection

It’s important you operate a fair procedure when deciding who you make redundant. And it’s down to you who stays and goes.

But there are redundancy selection legal risks you have to take into consideration. The process does come with the risk of a potential employment tribunal. And that’s no matter how thorough and fair you are in your process.

So, you’ll face scrutiny of the way in which you go about choosing who you make redundant.

The result of this is you must approach every redundancy situation in as thorough and careful manner as possible.

It’s important to remember a redundancy is a dismissal—that means if you don’t follow a fair procedure, while establishing a redundancy selection pool and the procedure followed to make staff redundant, you may face an unfair dismissal claim.

Also, if an employee demonstrates dismissal was due to a protected characteristic (such as their age or gender), you may also face a potentially unlimited tribunal pay-out for discrimination.

It’s down to you to determine the most sensible way to achieve a fair outcome. But there are steps you can take to limit risks. 

The redundancy selection procedure

Selecting those to make redundant is the first procedure you’ll undertake as part of an overall redundancy process.

Remember—these are the individuals you feel the company can afford to lose. Essentially, once they’ve left the business, their role isn’t necessary.

So, it’s crucial you get this right. Not only to avoid accusations from staff that treatment was unfair, but also to ensure the best possible outcome for your company.

But how you approach a selection procedure can differ. Some organisations choose the more traditional method of assessment against a matrix of skills or redundancy “selection criteria”.

It’s important, when selecting employees for redundancy, you choose criteria that keeps essential staff in their roles. 

Some will argue you should take into consideration their skills—but these may not be important to the future of the organisation.

You must also be fair in the criteria you choose and the way in which scoring or grading takes place. To implement a fair redundancy selection, it’s recommended you:

• Consult about the criteria you propose to apply so the employees can influence the process.
• Check whether you have an existing collective agreement or contractual procedure governing selection criteria.
• As far as possible, choose objective criteria that you can verify by reference to data such as appraisals or training records.
• Avoid, when you can, subjective criteria that could come down to personal opinion.
• Avoid direct or indirect discrimination.
• Ensure more than one person carries out the assessment.

You need to be in a position where you can clearly demonstrate the need for your process.

And this is one of the main reasons for redundancy selection, such as a pool of candidates—it can help to limit the chance of an unfair dismissal or discrimination claims.

You can show you took a thorough approach by:

• Remaining fair and impartial.
• Carefully selecting through staff based on their contributions to your business.
• Relying on a proven process.

Redundancy selection criteria examples

Okay, so what are some of the common types of criteria businesses use? They should remain relevant for your business, for a start. There’s not a one size fits all approach here.

But an example redundancy selection criteria includes the:

• Standard of work.
• Overall skill set.
• Qualifications.
• Experience. 
• Attendance record (minus workplace absences due to family leave or illness).
• Disciplinary record.

It’s also common for businesses to want to add length of service. That seems a perfectly natural decision, right?

But can length of service be used in redundancy selection? Yes. However, you should be careful it doesn’t lead to claims of age discrimination.

People from younger age categories may not have worked for you as long as older staff.

The redundancy selection matrix

This is a thorough method for selecting employees, with the goal of making sure your process is fair and appropriate.

Using a clear “matrix” provides a selection and scoring system from which you can make dismissal decisions. It should:

• List your criteria for deciding redundancy, which you should weigh in order of importance to your business.
• From there, you can grade each individual on how well they perform in each category.

It’s important to double-check all calculations so you can remove suggestions of personal bias.

All score sheets should also have clear guidance notes indicating which competencies are necessary for each particular score.

Remember, during consultations employees may request to see their score. So you should make sure you’re able to justify your reasoning.

When is redundancy selection unfair?

An unfair redundancy selection process can arise in a number of circumstances. For example, if anyone faces selection for parental reasons (such as due to pregnancy).

This puts them at an unfair disadvantage to their colleagues and runs the risk of a discrimination claim.

Likewise, individuals shouldn’t be up for selection on the basis they’re a trade union representative.

You may also need to adjust your scoring regarding absence levels or productivity for those with disabilities.

It’s also important to remain consistent when scoring employees based on the criteria you have identified.

For example, if someone receives a high score due to having a certain qualification, but a colleague has a lower score despite having this same accolade. That may come across as unfair.

In this situation, staff could raise concerns over why this discrepancy in scoring has arisen and if it’s due to personal prejudices.

Need our help?

We can help you through any dismissal process—and help you to find alternatives. Get in touch for instant support: 0800 028 2420.

You can also download our free redundancy consultation letter today, ensuring total legal compliance throughout the redundancy process. If you need further advice, you can book a consultation with one of our qualified HR consultants.