Fair selection is one of the most scrutinised aspects of the redundancy process. Tribunals will examine both the criteria used and how they were applied. Subjective or inconsistent selection is a common cause of successful unfair dismissal claims — and can also give rise to discrimination claims.
Defining the Selection Pool
Before applying criteria, identify the correct pool of employees from which selections will be made. The pool should include all employees doing the same or similar work. Key principles:
- The pool must be reasonable — not artificially narrow to target a specific individual
- Employees in different roles but with interchangeable skills may need to be included
- A pool of one is only appropriate where the role is genuinely unique and no other employee does similar work
Objective Selection Criteria
Criteria should be measurable and applied consistently. Commonly used criteria include:
- Skills and qualifications — relevant to the ongoing needs of the business
- Performance — based on documented appraisals and measurable output
- Attendance record — using documented absence records (but be careful to exclude disability-related and pregnancy-related absence to avoid discrimination)
- Disciplinary record — only live warnings should count
- Length of service — can be a factor but should not be the sole criterion (risk of age discrimination)
Criteria to Avoid
- "Last in, first out" (LIFO) as the sole criterion — can indirectly discriminate against younger employees
- Subjective assessments — "attitude" or "team fit" without objective evidence
- Part-time or flexible working status — could discriminate against women or disabled employees
- Pregnancy or maternity-related absence — automatically unfair and discriminatory
- Trade union membership or activity — automatically unfair
Scoring and Documentation
Create a scoring matrix where each criterion is weighted and scored individually for each employee in the pool. The process should be:
- Documented in detail
- Scored by someone who knows the employees' work
- Moderated to ensure consistency
- Shared with at-risk employees during consultation so they can challenge their scores
Need help setting up a fair selection process? Our redundancy management service includes designing and applying selection criteria. Get expert guidance.