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Fair redundancy: are you running the risk of an unfair and unethical employee selection process?

Redundancy is a fraught process for everyone involved. That’s why proper planning and preparation is crucial. Not only does it help minimise the emotional impact, in some cases, redundancy is replaced with alternative approaches that avoid job losses. Of course, the latter is always the preferred option – putting people first defines an ethical redundancy.

In some cases, however, job losses are inevitable. As a conscientious employer faced with selecting employees for redundancy, you’ll want your choices to go beyond withstanding legal scrutiny, to be actually fair and ethical too. There is no place for lip service in this part of the process. If employees understand and buy in to the criteria and the selection process, they will feel they have been fairly assessed and even if they don’t like the outcome they will more likely accept it.

Fair selection of employees is probably one of the most heavily disputed and litigated aspects of redundancy. Often, from the employee’s perspective, being selected cannot be objectively explained or justified. This is especially true when they’re a high performer, yet the selection criteria produce a low score.

A fair selection process set out by law

The three phases of a selection process, set out by law, are designed to help you make sure it’s fair and non-discriminatory.

Phase 1: Deciding on a redundancy pool.

Phase 2: Defining the selection criteria.

Phase 3:Applying the selection criteria fairly and objectively.

A points system is preferred for its objectivity and ideally should be applied independently by more than one manager familiar with the pool of employees. Fairness must be the focus throughout.

Our three-point guide to doing the right thing during the selection process

In the absence of a collective agreement with a union, there’s plenty of flexibility in how you approach each phase and your decisions. From one people-first employer to another, here are three things to think about when tackling these phases:

1. Take time to consider the different measures for performance and ability of at-risk employees to ensure criteria (and weighting) are relevant, fair and objective where possible. This is not an ‘off-the-shelf’ exercise and has to start with the retained role you’re selecting for and a clear job description for that role. Remember it’s not an assessment of performance, but rather an assessment of someone’s suitability against the role required.

2. Employ objective measures and written records. And be mindful of systemic and individual issues when considering seemingly objective evidence such as sales figures and appraisals. In some cases appraisals might have been carried out irregularly, or missed during planned absence or done differently by different managers. Subjective opinions based on personal allegiances should be avoided.

3. Discuss criteria and scoring with staff before finalising your approach. Identifying and addressing any issues with your preferred methods means you’re more likely to avoid disputes or worse further down the line. It also shows you’re being open and honest, which in turn will instil trust in the process. Avoid presenting selection to staff as a fait accompli, as it looks like you’re simply picking off unwanted individuals, even if that is not the case.

Positive for business, positive for people

Our employment law solicitors help business owners like you make commercial changes legally while helping you uphold your principles and do the right thing by your people. Call on 0808 252 5231 or request a call back for a free and confidential discussion with one of our employment law specialists.


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