When businesses face difficult times, redundancies often become unavoidable. However, what starts as a legitimate redundancy process can quickly turn into an unfair dismissal claim if employers get the selection criteria wrong. At Davenport Solicitors, we’ve seen countless cases where well-intentioned employers have found themselves facing tribunal claims simply because they didn’t understand the legal requirements.
A genuine redundancy occurs when an employer needs to reduce their workforce due to economic pressures, business closure, or reduced need for particular roles. The key word here is “fair” – the process must be conducted properly, and the selection criteria must be objective and reasonable.
Fair selection criteria should be:
Common fair selection criteria include:
From our experience representing both employers and employees, several factors can transform a legitimate redundancy into unfair dismissal:
Discriminatory Selection
We’ve handled cases where employers unknowingly used criteria that discriminated against certain groups. For example, selecting employees based on “flexibility” when this disproportionately affects working parents, or using “energy and enthusiasm” which could discriminate against older workers.
Lack of Proper Consultation
Many employers rush the redundancy process without adequate consultation. The law requires meaningful consultation with affected employees and their representatives. This isn’t just a tick-box exercise – it’s about exploring alternatives and allowing employees to respond to provisional decisions.
Predetermined Decisions
Courts and tribunals can spot when an employer has already decided who to make redundant before going through the selection process. We’ve seen cases where the “consultation” was merely window dressing for decisions already made.
Poor Documentation
Employers who can’t properly document their selection scoring or decision-making process often find themselves in difficulty. Tribunals need to see clear evidence of how decisions were reached.
Based on our experience, these warning signs often indicate a redundancy has become unfair dismissal:
Personal Targeting: When the redundancy seems designed to remove a particular individual rather than reduce costs or restructure the business.
Timing Issues: Redundancies that coincidentally occur after an employee raises a grievance, returns from maternity leave, or joins a trade union.
Inconsistent Application: When the same criteria produce different outcomes for similarly situated employees without clear justification.
Sham Consultations: Going through the motions of consultation whilst having already made final decisions.
To avoid turning fair redundancy into unfair dismissal, employers should:
Plan the Process Carefully
Take time to identify the genuine business need for redundancies. Document the reasons clearly and ensure they’re legitimate business drivers rather than convenient ways to remove problem employees.
Develop Objective Criteria
Work with employment law specialists to develop selection criteria that are measurable, relevant, and legally compliant. Avoid subjective assessments that could be challenged as discriminatory or unfair.
Consult Meaningfully
Allow adequate time for genuine consultation. Listen to employee concerns and consider alternatives seriously. Document all discussions and decisions made during the process.
Consider Alternatives
Explore options like voluntary redundancy, reduced hours, pay cuts, or redeployment before making compulsory redundancies. Tribunals expect to see evidence that alternatives were properly considered.
Appeal Processes
Provide a meaningful appeal process that allows employees to challenge selection decisions. Ensure the appeal is heard by someone not involved in the original decision.
In our practice, we regularly encounter these errors:
The “Performance Management” Redundancy: Using redundancy as a way to remove underperforming employees without following proper performance management procedures.
The “Personality Clash” Selection: Choosing employees for redundancy because they don’t “fit in” or have complained about management decisions.
The “Convenience” Redundancy: Selecting employees who are seen as less important or more easily replaced, rather than following objective criteria.
The “Cost-Cutting” Error: Focusing solely on salary costs without considering the legal risks and potential tribunal awards.
Employees should consider legal advice if:
Employment law is complex, and the consequences of getting redundancy processes wrong can be severe. Whether you’re an employer planning redundancies or an employee facing selection, specialist legal advice is essential.
At Davenport Solicitors, we help businesses conduct fair redundancy processes that protect against unfair dismissal claims. We also represent employees who believe they’ve been unfairly selected or dismissed.
The key to fair redundancy is proper planning, objective criteria, meaningful consultation, and thorough documentation. When employers take shortcuts or make assumptions about what’s “fair,” they often find themselves facing expensive tribunal claims.
If you’re facing redundancy decisions or believe you’ve been unfairly selected, contact our employment law team for specialist advice tailored to your situation.
Disclaimer
The material contained on this website contains general information only and does not constitute legal or other professional advice and should not be relied upon as such. While every care has been taken in the preparation of the information on this site, readers are advised to seek specific advice in relation to any decision or course of action.
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