If your employer is planning to reduce the number of employees in a particular organisation or team, they must make a list of roles to be considered for redundancy.
This is the selection pool. They must also produce a set of selection criteria. However your employer chooses to select people for redundancy, the process must be fair and objective.
There may need to be more than one selection pool if a number of different roles are at risk of redundancy. ACAS says your employer should include in each pool 'all roles that are the same or similar'. They should also consider including roles with similar skills. For instance, your employer puts all marketing roles in one selection pool. Roles from the press and communications team could be included in the same pool if the skills are similar to those required for marketing.
For a redundancy dismissal to be fair, an employer should (Law at Work 2020, p 420):
- Produce agreed selection criteria.
- Try to ensure those criteria are as objective and measurable as possible, rather than relying on the personal opinion of a manager.
- Ensure the criteria are followed, so the selection process is carried out fairly.
- Consider any representations.
- Offer alternative employment, if possible.
How the selection pool is decided should be included in the consultation. Law at Work makes clear that employers have a great deal of latitude (Law at Work 2020, p 420), though. An employer could legally have a pool of a single person, if their role were really the only one at risk of redundancy. However, reps should examine whether targeting a single employee could be a cover for a hidden reason such as capability, or being an NUJ rep.
How selection criteria are used
Selection criteria are used to 'score' employees in a selection pool. The criteria must be applied in the same way to all those in the same pool.
Selection criteria could include:
- Standard of work or performance.
- Skills, qualifications or experience.
- Attendance record. This must be accurate. Additionally, ACAS says this must not include absences relating to disability, pregnancy or maternity. Law at Work, however, cautions that a selection process will not automatically be unfair if it includes some absence related to disability, as long as the employer has made reasonable adjustments (Law at Work 2020, p 422). These adjustments must ensure that an employee with a disability is not disadvantaged. They could include, for example, giving an employee extra training if their disability meant they were absent for long periods and missed out on it first time round, thereby leaving them at greater risk of redundancy.
- Disciplinary record.
Employers can award extra marks for criteria which they regard as relatively more important. For example, if it were agreed in the consultation that attendance records were less important than skills, your employer could score attendance out of five points, but skills out of 10.
Your redundancy would be classed as an unfair dismissal if you were selected for any of these reasons, listed on the UK government website:
- Gender reassignment.
- Marital status.
- Sexual orientation.
- Religion or belief.
- Age, unless your employer can 'objectively justify' age discrimination as a 'proportionate means of achieving a legitimate aim' (see section on Discrimination and equality, including protected characteristics). While employers can use a 'last in, first out' criterion, the Equalities and Human Rights Commission makes clear that this might discriminate against younger people, who tend to have shorter employment records, as well as women and disabled people who frequently have interrupted careers [https://www.equalityhumanrights.com/en/multipage-guide/avoiding-unlawful-discrimination-when-making-redundancy-decisions]. It should not, therefore, be used as the only criterion.
- Your NUJ membership.
- Health and safety activities.
- Your working pattern – for example, if it were part-time or fixed-term – unless there is an 'objective justification'.
- Maternity leave, birth or pregnancy.
- Paternity leave, parental or dependant's leave.
- You are exercising your statutory rights.
- Whistleblowing – for example, about your employer's wrongdoing.
- Taking part in lawful industrial action lasting 12 weeks or less.
- Taking action on health and safety grounds.
- Doing jury service.
- You are the trustee of a company pension scheme.
If you believe your dismissal was unfair, talk to an NUJ rep or officer as soon as you can. There are strict time limits governing when you can bring a claim to a tribunal.
Employers can protect themselves from the risk that their selection criteria are discriminatory by consulting properly on them, and carrying out an equality impact assessment.