What Makes a Redundancy Genuinely Fair
A redundancy dismissal is potentially fair under the Employment Rights Act 1996. For it to be actually fair, the employer must also act reasonably: the redundancy must be genuine, the pool for selection must be fairly defined, the selection criteria must be objective and fairly applied, the employee must be genuinely consulted, and the employer must consider alternatives to redundancy.
A failure in any of these elements can make an otherwise genuine redundancy unfair. The most commonly litigated issue is the fairness of the selection process.
The Selection Pool
The employer must correctly identify the pool of employees from which redundancies will be selected. The pool should include all employees doing the same or similar work. If the employer defines the pool too narrowly, this can make the redundancy unfair.
Employers have a degree of flexibility in defining the pool and the tribunal will not interfere unless the pool is so unreasonably defined that no reasonable employer would have approached it that way.
Selection Criteria
Selection criteria must be objective and capable of being applied fairly. Common criteria include: skills and qualifications, performance records, attendance records, disciplinary records, length of service, and flexibility. Criteria that are entirely subjective are more difficult to defend and easier to challenge.
The criteria must be consistently applied across all employees in the pool. If the same criterion is applied strictly to some and leniently to others, this is potentially unfair.
Automatically Unfair Selection
Selection for redundancy is automatically unfair if the reason for selection is one of the automatically unfair reasons: pregnancy or maternity leave, making a protected disclosure (whistleblowing), asserting a statutory right, trade union membership or activities.
If you were selected shortly after a protected event -- returning from maternity leave, raising a grievance, making a whistleblowing disclosure -- this is a significant indicator that the selection may have been automatically unfair.
Consultation
The employer must genuinely consult with employees at risk of redundancy before the final decision is made. Consultation must be meaningful -- it cannot simply be notification that a decision has been made.
Where 20 or more redundancies are proposed within 90 days, the employer must notify the Secretary of State and consult with appropriate representatives. Failure to comply can result in a protective award of up to 90 days' pay per employee.