Unfair Redundancy Selection Process

A fair redundancy process typically involves identifying a genuine redundancy situation, defining a fair pool of employees from which selections will be made, applying objective and measurable selection criteria, conducting individual consultation meetings, and considering whether suitable alternative roles exist within the organisation. Selection criteria commonly used include skills and qualifications, attendance records (excluding disability-related and pregnancy-related absences), disciplinary records, length of service, and performance assessments. The employer should be able to explain and evidence how the criteria were applied. Where 20 or more redundancies are proposed within 90 days at one establishment, collective consultation obligations apply under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Common situations include: being selected for redundancy without being told the selection criteria, the employer using subjective or vague criteria that seem designed to target specific individuals, not being consulted before the decision was made, being selected for redundancy shortly after raising a grievance or returning from maternity leave, the employer failing to consider alternative roles within the organisation, and the redundancy appearing to be a way of dismissing someone the employer simply wants to remove.

Redundancy is a potentially fair reason for dismissal under section 98(2)(c) of the Employment Rights Act 1996, but the employer must still act reasonably under s.98(4). The definition of redundancy is set out in s.139 ERA 1996. Employees with two or more years’ continuous service are entitled to a statutory redundancy payment under s.135 ERA 1996. Section 105 ERA 1996 provides that selection for redundancy is automatically unfair if based on certain protected grounds including trade union membership, pregnancy, whistleblowing, or exercising statutory rights. The Trade Union and Labour Relations (Consolidation) Act 1992, s.188, requires collective consultation where 20 or more employees may be made redundant within 90 days. The ACAS guidance on handling redundancy provides practical recommendations.

People who believe their redundancy selection was unfair often consider requesting full details of the selection criteria and their scores, raising concerns through the employer’s appeal or grievance process, checking whether the selection might be linked to a protected characteristic or protected activity, and seeking legal advice about the strength of a potential unfair dismissal claim. Some explore early conciliation through ACAS. It is worth noting that tribunals generally apply a range of reasonable responses test rather than substituting their own view of what selection criteria should have been used.

Common mistakes include: signing a settlement agreement without taking independent legal advice, not requesting the selection criteria and scores in writing, missing the three-month less one day time limit for bringing a tribunal claim, accepting a redundancy without questioning whether the role is genuinely being eliminated, and not checking whether the employer has advertised similar roles shortly after making the redundancy.