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Redundancy After Lockdown – Fair Selection

In our last instalment we reported on collective consultation and this week in our redundancy mini-series, we look at selection for redundancy and highlight some of the key issues that employers will need to consider to ensure the process is fair.

Selection Pools 

Before selecting an employee or employees for redundancy, employers must consider what the appropriate pool(s) of employees for the redundancy selection should be.

There are no hard and fast rules on how selection pools should be determined, and employers do have a fair degree on latitude on this.  What is important is that an employer must properly turn its mind to the selection pool and be able to justify the decision that is made.  The decision needs to be reasonable, and the employer should have clear and cogent rationale for choosing the pool they have chosen.  This should all be backed up in writing in case the choice of pool is called into question at a later date.

It is understandable that an employer would normally want to keep pools as narrow as possible.  A pool that is too wide makes the selection process more onerous and is likely to have a bigger impact on employee morale.  However this is sometimes at odds with employees who argue that the pool should be wider than it is.

An employer may decide on a pool of one where there is a unique postholder or where there is only one person being made redundant at a particular place that is closing.  This is perfectly reasonable, but again employers will need to be able to justify their reasoning for this.  Where there is more than one person in the pool, employers need to think carefully about who should be included.  The starting point is usually to think about which type of work is diminishing and look at employees who do similar work.  This may take into account different sites where employees do similar work and people with interchangeable roles.

Scoring

Once the selection pool has been decided, where there is a pool of more than one, scoring will need to take place.  Managers should be trained on how to do this properly.  Objective selection criteria should be used and should be capable of being measured e.g. against HR records.  The criteria should not be solely subjective and employers should avoid using criteria such as who is “the best person for the job”.

Employers should be wary of solely relying on “last in, first out” where this may result in age or sex discrimination.  Care should also be taken when relying on attendance records where somebody has been off work due to pregnancy related illness, maternity or other family friendly leave or due to illness related to a disability.  It is important to remember that not only should the selection criteria be fair, the way that they are applied should be fair too.  It is a good idea for 2 managers to be involved in the scoring process for this reason.

Once the scoring has taken place, the employer should disclose the individual scores to the employees, explaining how they were scored and the score that they received as part of the consultation process.  The employee’s score may change as part of the consultation process – consultation is supposed to be a “two-way street” with the employee making suggestions on ways to avoid redundancy.  Therefore employers should also be prepared to answer questions which may arise during the consultation process on the pools and scoring process, whilst being mindful that other employees’ scores should not be disclosed.

If you require any assistance in relation to selection pools, scoring, the redundancy process or any employment or HR matters generally please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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