Termination on the grounds of redundancy can be unfair if the termination is not a genuine redundancy, or, if an unfair procedure has been carried out.
Part of a fair procedure is to consider whether there is a selection pool. As a practical example: the employer considers that four positions in the retail department are potentially at risk. If there are six retail assistants from whom the employer is proposing to select four, there is a selection pool of six and the employer needs to consult with all six retail assistants over a proposed selection criterion. Once the employer has finalised the selection criteria, the employer should then score each of the six employees and the three lowest scoring assistants are then at risk of redundancy. The employees should then be invited to individual consultation meetings.
By contrast, if the position at risk of redundancy is the one senior retail manager, there is no selection pool and the employer can proceed straight to an individual consultation.
Are there rules as to who should be in the selection pool?
There are no fixed rules about how the pool should be defined. In one case, the Court decided that it was reasonable for an employer to dismiss a driver who could do the work of a mechanic whilst not including in the pool a mechanic who occasionally did some driving.
Usually, an employer will wish to keep the pool for selection narrow because a wide pool means more employees to consult with, a greater disruption to the business and potential greater loss of morale. It is a matter of commercial judgment whether the risks of narrowing the pool outweigh the risk and cost of Tribunal claims.
The redundancy selection criteria should, as far as possible, be both objective and capable of independent verification. Most selection processes involve ‘scoring’ against the criteria, with weighting (as appropriate) where certain criteria are more important. The roles of the lowest scoring employees are then provisionally selected for redundancy. Examples of commonly-used scoring criteria include:
- Performance (with reference to appraisal records);
- Skills (as measured against the job description);
- Disciplinary (with reference to any records); and
- Sickness (with reference to any records and discounting any periods of absence for disability or pregnancy related reasons).
Alternatively, an employer may choose to conduct a competitive interview process. This involves assessing the employee against the skills and competencies required for the role. Typically, this form of selection is easier to challenge because it involves greater subjectivity on the employer’s part.