Selection criteria

In deciding whom to select for redundancy, you need to consider your pool for selection, the objective criteria that you are going to apply and the adoption of a fair marking system. An unfair selection for redundancy can result in an unfair dismissal.

Fair selection

The Selection Criteria which you use to decide which employees are to be chosen for redundancy are of great importance. While you are given some latitude to tailor your staffing requirements to suit your business needs, you will fall foul of the law if these criteria are not objectively chosen and fairly applied. If you have agreed procedures providing criteria for redundancy selection, you should follow them. In determining the fairness of a redundancy dismissal, an employment tribunal will examine your pool for selection (the group of employees from whom those who were made redundant were drawn), the selection criteria which were applied to them and the manner in which you applied the criteria.

Pool for selection

The pool for selection is likely to include those employees working in the area of your business where manning cuts are needed. You must not only consider the job descriptions of the employees but also what functions they perform in practice. You will probably be acting unreasonably if you exclude from the pool employees who are doing similar work to the group from which selections are made. The fact that one employee may be able to do another’s job does not in itself mean that the employees hold similar positions, although if their jobs are interchangeable they should arguably be in the same pool (irrespective of job title or department). It may also be unreasonable if you treat employees working at two different sites or on two different shifts as separate groups for the purposes of redundancy selection.

Selection criteria and manner of selection

The selection criteria you choose must be both objective and necessary for the present and future needs of your business. In selecting them, the starting point is to consider which factors are important for and relevant to the future needs of your business. You must also ensure that the selection criteria are neutral as regards such matters as sex, race, sexual orientation, gender reassignment, disability, religion or belief, pregnancy and maternity, marriage and civil partnership and, as far as possible, age. Once objective criteria have been decided upon, you must take care that any marks the employee receives are verifiable by reference to evidence and data such as personnel files, attendance records, appraisal forms, disciplinary records, time sheets and skills audits. The relevant selection criteria must be applied to the employees in a reasonable, fair, consistent and objective manner and the marks awarded in relation to each criterion cannot reflect your personal opinions. It is always prudent to have the marking system checked independently by at least two members of the management team to show that personal opinions aren’t clouding judgment. Employees should be shown their individual marks as part of the consultation procedure so they can contest their selection at an early stage if they think it’s unfair.

Examples of objective selection criteria include: length of service, attendance record, timekeeping record, disciplinary record, job performance, achievement of targets, relevant qualifications, relevant type or breadth of knowledge and skills, etc. Vague, subjective criteria such as inter-personal skills and attitude are generally, without the implementation of formal disciplinary measures, not acceptable. For a suitable precedent, use the Selection Criteria. Also, be aware that using “LIFO” (last in, first out) could be indirectly age discriminatory against younger workers and therefore you will need to be able to objectively justify using this on its own. It’s likely only to be suitable in relation to those jobs where there really is nothing to choose between the candidates in the pool and assessing their skills, etc. would be inappropriate.