Unfair selection for redundancy

This is a really important question and the short answer is no, your employer cannot lawfully select you for redundancy in an unfair way. However, whether a particular selection is "unfair" depends on the circumstances, so it is worth understanding what the law requires and where things commonly go wrong.

The legal framework:

In England and Wales, redundancy is a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996. However, even where a genuine redundancy situation exists, the employer must still act reasonably in how it carries out the process. This includes how it selects the person or people to be made redundant.

What makes a redundancy selection fair:

To be fair, the employer generally needs to do several things.

1. Establish a genuine redundancy situation, meaning the need for employees to carry out work of a particular kind has ceased or diminished, or is expected to.

2. Define an appropriate pool for selection. This means identifying the group of employees from which the redundant person will be chosen. The pool should be logical and defensible, typically covering employees doing the same or similar work.

3. Apply fair and objective selection criteria. These are usually scored criteria such as skills, qualifications, performance records, attendance, disciplinary record, or length of service. The criteria should be measurable and applied consistently.

4. Carry out meaningful individual consultation. The employer must consult with affected employees before making a final decision. This should be genuine, not a rubber-stamping exercise.

5. Consider suitable alternative employment within the organisation before confirming dismissal.

What makes a selection unfair:

A selection can be challenged as unfair if, for example, the employer used subjective or vague criteria that allowed bias to creep in, failed to consult you individually before the decision was made, chose you based on personal dislike or a grudge rather than genuine business criteria, manipulated the scoring to achieve a predetermined outcome, defined the selection pool too narrowly to target a specific individual, or failed to consider you for alternative roles that were available.

Automatically unfair reasons:

Certain reasons for selection are not just unfair but automatically unfair, meaning the employer has no defence regardless of the process followed. These include selection connected to pregnancy or maternity leave, trade union membership or activities, whistleblowing (making a protected disclosure), asserting a statutory right such as requesting flexible working or the national minimum wage, or health and safety activities. If the real reason for your selection was one of these, you do not need two years of qualifying service to bring a claim.

Qualifying service:

For an ordinary unfair dismissal claim based on an unreasonable selection process, you generally need at least two years of continuous employment. If the reason is automatically unfair or amounts to unlawful discrimination, no minimum qualifying period applies.

Discrimination:

If the selection criteria or process disproportionately disadvantage you because of a protected characteristic under the Equality Act 2010, such as age, disability, sex, race, religion, sexual orientation, or pregnancy, this could amount to discrimination even if the employer did not intend it. For example, using attendance records without adjusting for disability-related absences could be indirect disability discrimination.

Practical steps if you are concerned:

1. Ask for the selection criteria and your scores in writing. You are entitled to understand why you were chosen.

2. Raise any concerns during the consultation process. If the scoring seems wrong, say so and provide evidence.

3. Keep a record of everything, including meeting notes, emails, and anything that shows the process was flawed or the real motive was something other than genuine redundancy.

4. If there is an appeal process, use it. Failing to appeal can count against you later if you bring a tribunal claim.

5. If you believe the selection was genuinely unfair or discriminatory, consider seeking early conciliation through Acas before the deadline, which is usually three months less one day from the date of dismissal, though early conciliation can extend this.

6. Consider whether negotiating a settlement agreement might be a better outcome than litigation, especially if the employer recognises its process was flawed.

The key question in any tribunal claim will be whether the employer acted within the range of reasonable responses in how it conducted the selection. The tribunal will not substitute its own view of who should have been selected, but it will scrutinise whether the process was fair and the criteria were properly applied.

If you can share more about your specific situation, I can give you a more tailored view of where you stand.