Employers that fail to get the redundancy selection process right are leaving themselves open to costly employment tribunal claims. Employment lawyer Clare McNicholas explains the key steps needed to ensure redundancy is seen as fair.
When carrying out a redundancy exercise, getting your selection process right is key. Purely procedural failings in redundancy dismissals are rarely worth pursuing by an employee because if the employment tribunal concludes that the failure made no difference to the end result, the compensation awarded will be very limited. A failure in selection, however, is a different thing – this might mean the “wrong” person was dismissed and that could generate a substantial claim for loss of earnings.
Here are the key points HR should consider when drawing up and applying redundancy selection criteria.
Ensure redundancy selection criteria are so far as practicable objective and job-related
Employers should use appropriate objective and non-discriminatory selection criteria. For example, if one of the selection criteria is attendance, it should ensure that it discounts any pregnancy or maternity-related absences during the protected period.
More on redundancy selection
How to employ redundancy selection criteria
Draw up selection criteria for redundancy
If the pregnancy or maternity absence distorts what would otherwise have been the employee’s scores, consider what they would have been had she not been pregnant/on leave. If you are going to give her a score which differs downwards from that which her last appraisal would suggest, you should be able to explain why – it is not that performance cannot fall off after a good appraisal, but if you can’t prove it, the business is badly exposed to allegations that the score is rigged to ensure she is the one to leave.
Against that, don’t be tempted to give her a better score than you think she deserves just because she is pregnant or on leave – down that path lie claims for unfair dismissal and discrimination from other employees put at risk or dismissed in her place.
It is worth HR going through the provisional list of “at risk” employees to identify any who are (or have been) on maternity leave or long-term sick leave in order to ensure their selection has not inadvertently been influenced by discrimination factors.
Ensure selection criteria are clear and address the challenges faced by the business
Ideally the managers running the business should be involved in selecting the criteria to ensure that it retains those employees with the skills and experience it requires going forward.
While HR can query and challenge particular scores to test their resilience or fairness, HR should not be seen to be dictating the outcome. Otherwise you leave yourself exposed to that ghastly moment in an employment tribunal where the manager publicly disowns the score in question, points to you in the back row and says “HR made me do it”.
Employers should think about the weighting of their criteria – is a three in “time-keeping” really as valuable as a 3 in “business development skills”? If certain attributes are more important in the company’s future than others, then reflect this in the weightings or you will find your selection decisions hobbled by good scores in unimportant respects.
On a related note, employers should keep their scoring simple, one to five at most. Bear in mind that someone who is put at risk after a scoring exercise may be only a point or two off safety, so the ability to defend and justify that gap will be paramount.
When choosing your criteria, remember also that:
- if you are looking at 20 or more redundancies within 90 days you will need to consult about the criteria with appropriate employee representatives (and that “consult” means that you have not definitively already chosen them);
- internal email discussion of proposed criteria will all be disclosed in tribunal, so do avoid any reference to ensuring that your criteria will allow you to “retain Mr X and weed out Ms Y”, for example.
Ensure you have evidence to support an employee’s score
One thing we come across regularly is managers who are unable to point to hard evidence, such as personnel records or appraisal forms, to support the scores allocated as part of the selection process. Not only does this leave scope for the employee to challenge the scoring process, but it also increases the risk of a tribunal claim.
Even if there is no paper record, managers should still be required to point to particular examples to support their stated views. HR should create its own notes of such discussions with the relevant line managers. Try to ensure that the managers expressly approve the terms of any note so that there is less wriggle-room at a later date and they are obliged to focus properly on the precise mast(s) to which they are pinning their colours.
Ensure consistency in the redundancy selection process
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HR should oversee the scoring process to ensure it is being carried out consistently and that managers can point to something concrete to support their assessments – that they are not just relying on “gut feel”.
Remember that HR is not the decision maker
While HR can query and challenge particular scores to test their resilience or fairness, HR should not be seen to be dictating the outcome. Otherwise you leave yourself exposed to that ghastly moment in an employment tribunal where the manager publicly disowns the score in question, points to you in the back row and says “HR made me do it”.
