Termination on the grounds of redundancy can be unfair if either 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 an example, the employer considers that three positions in the Accounts Department are potentially at risk. If there are five Accounts Assistants from whom the employer is proposing to select three, there is a selection pool of five and the employer needs to consult with all five Assistants over proposed selection criteria. Once the employer has finalised the selection criteria, the employer should then score each of the five employees and the three lowest scoring Assistants are then at risk of redundancy. They then need to be invited to individual consultation meetings.
On the other hand, if the position that the employer considers to be at risk of redundancy is the one Senior Accounts Manager, there is no selection pool and the employer can proceed straight to an individual consultation.
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 judgement 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. Potentially fair selection criteria include performance, skillsets identified as important and disciplinary records. Selection on purely subjective grounds is likely to be unfair. Even if the selection criteria are fair but they are unfairly applied, the dismissal is likely to be unfair.
If you have any queries, please do not hesitate to contact a member of our Employment Team.