When making employees redundant, you have to make sure that the redundancy selection process is fair, otherwise, you could leave yourself exposed to a costly employment tribunal claim.
Retaining the right people with the right skills, attitude and experience are crucial in a redundancy situation. Therefore, getting your selection process right is key in avoiding dismissing the ‘wrong’ person unfairly. This blog will help you to stay on the right path so that the redundancy selection process is seen as fair.
#1 Be objective and not subjective
Redundancy selection criteria needs to be objective and focuses on the job in hand rather than just being subjective. Take into consideration the case of Mitchells of Lancaster (Brewers) Ltd v Tattersall, the employment appeal tribunal considered the following as part of the unfair dismissal claim:
“…the criteria by which the Claimant was selected as the candidate for redundancy were unacceptable because they were wholly subjective and based solely on the views of the directors rather than being objective selection criteria”(Source: http://www.employmentcasesupdate.co.uk/site.aspx?i=ed11968)
#2 Be transparent with the redundancy
The application of the redundancy needs to be transparent and employees need to understand how it will be applied to them.
#3 Keep redundancy simple
When scoring employees to see who is best to keep, make sure this is done as simply as possible. An employee, who may be a point or two away from staying in employment and therefore is at risk of being made redundant, could actually challenge the scoring system, its application and fairness. Therefore, being able to justify the score and the difference in points will be important.
In addition to keeping it simple, make sure you gather facts and evidence to support an employee’s score to ensure criteria is objective rather than subjective (which also relates back to tip #1).
#4 Giving the employees a voice
Consult with the employee (or their representative) about how the selection would be made, allowing them the opportunity to express their views before the criteria is applied.
#5 Don’t go with gut feeling
It is important that you are able to rely on evidence, such as personnel records, experience, qualification, disciplinary records etc. as a means of supporting the majority (if not all) of the selection criteria as part of a fair process. Avoid relying on just a gut feeling.
#6 Involve line managers
Is the right person dictating the outcome? Make sure the ‘decision maker’ is the right person to be making the right decision, otherwise, you are leaving yourself exposed if challenged in court.
#7 Are the right people assessing employees?
The assessor will need to justify the criteria and why it has been chosen, therefore the scorers not only need to understand it but that they are the right people to be assessing the employees against those criteria.
#8 Discrimination factors
Avoid criteria which could be viewed as unlawful discrimination e.g. the length of service could indirectly discriminate against younger people, women who have had career breaks or disabled people whose disability may have hindered their careers. If you do need to rely on this criteria, then ensure other criteria are applied alongside it.
In additional to this, it is worth identifying potential employees who may be “at risk” of being inadvertently influenced by discrimination factors i.e. maternity leave, disability related or long term sick.
#9 Consistency and fairness is crucial
Where possible, HR should oversee the scoring process to make sure it is applied consistently for each employee.
#10 Check internal documents
Your internal documents about proposed selection criteria may need to be disclosed if a tribunal takes place. Avoid recording notes which you would not want to disclose if required as evidence e.g. Mr Smith is safe regardless.
#11 Employees have the right to see their own scores
Be aware – employees will have the right to see their own scores and understand how they have been scored against the criteria, however, have no right to see the scores of others.
#12 What will the employment tribunal will look at?
An employment tribunal will only look as to whether the selection process was fair and whether the correct process (if not applied) could have made a difference to the employee being dismissed.