What makes a redundancy selection unfair?

Even where a genuine redundancy situation exists, the selection of which employees are made redundant must be fair. Unfair selection grounds fall into three broad categories. First, automatically unfair selection: selecting an employee because of pregnancy or maternity, trade union membership or activities, whistleblowing, asserting a statutory right, or exercising rights under TUPE or working time legislation. These grounds are automatically unfair with no 2-year qualifying period required.

Second, discriminatory selection: using criteria that disproportionately affect employees with a protected characteristic (age, disability, sex, race, religion, sexual orientation, etc.) without objective justification. Using attendance records as a selection criterion, for example, can indirectly discriminate against disabled employees if their absences relate to their disability.

Third, procedurally unfair selection: defining the redundancy pool too narrowly to exclude obvious alternatives, failing to apply selection criteria consistently or objectively, not consulting properly with the employees in the pool, or not scoring employees fairly against the agreed criteria. An employer who has already decided who will be made redundant before beginning consultation, and uses the process as a formality, is likely to be found to have acted unfairly.