Like the pool, selection is one of those words that at first seems attractive, suggesting variety, but which does not garner such a positive interpretation when it comes to redundancy.
In a redundancy scenario, selection goes hand in hand with scoring employees to determine which may be made redundant and which may continue on with the business in surviving roles, similar roles or entirely new roles.
Telling someone in clear terms why they are being selected for redundancy in an unbiased manner is vital here. Think of it as an explanation rather than a justification of why a person is being selected for redundancy, as attempting to justify something that an employee likely will not agree with may not end well.
To that end, if trade union or employee representatives are involved, it can be worthwhile trying to agree the criteria for selecting employees for redundancy with them beforehand to try and limit the number of questions that you have to field later down the line.
The selection criteria for redundancy purposes should be objective and measurable.
For instance, an employee's length of service, their qualifications, their experience, their productivity and their disciplinary record can be measured, as opposed to far more subjective criteria that often have fancy titles, such as their “strategic implementation portfolio” or “growth mindset”, which are not helpful for these purposes (i.e. to you, the employees or, if it comes to it, an employment tribunal).
Alongside this, the selection criteria must be applied fairly.
A good example is an employee’s absence record. If the employee has been on maternity leave or has been absent for an illness that either is clearly related to a disability or which could be related to a disability, then a reasonable employer should discount it from that employee’s absence record as including it could risk claims of unfair dismissal, discrimination and also possibly automatically unfair dismissal.
Likewise, the once-popular selection criteria of “last in, first out” (LIFO) is also no longer appropriate. LIFO generally operates to the detriment of younger employees and employees whose race may not be properly represented in a business. This means that employers who try to rely upon it may be laying themselves open to claims of direct age discrimination (which could possibly be justified), as well as indirect age and/or race discrimination.
So, as you can see, if you do not prepare and apply your selection criteria in a fair and justifiable manner, then you could be leaving yourself open to a significant litigation risk!
This article is intended for information purposes only and not as a substitute for legal advice. TP Legal does not accept any responsibility for any decisions that you may make as a result of reading this article.
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