This blog follows on from the first blog in our series of redundancy blogs which provided guidance for employers on the redundancy process.
Last week, in the first part of this series on how to manage a redundancy process, we looked at what a redundancy situation is and how a business can formulate robust redundancy proposals before embarking on a redundancy process with its employees.
Once an employer has identified that there is a redundancy situation, they need to consider which employees are at risk of redundancy. In this article, we will be delving into the all-important area of pooling and selection, which is where the employer decides which "pool" of employees are impacted by the redundancy situation and, secondly, what the criteria and scoring process will be for then selecting individuals from within that pool for redundancy. Getting this wrong can lead to successful claims from employees, including unfair dismissal and discrimination claims.
There is no statutory definition setting out how an employer must pool employees. The guidance on this has developed over many years through case law.
There could be a business closure situation where there is no need to pool and select employees for redundancy, as all employees working within that business or branch are to be made redundant. However, this article will focus on situations where pooling and selection is required.
If a recognised trade union is involved, the employer will normally be expected to discuss its choice of pool with the trade union or, in the event of a collective consultation process (triggered where an employer proposes 20 or more redundancy dismissals, at a single establishment, over a period of 90 days), with elected employee representatives.
In deciding whether a redundancy selection was unfair, an Employment Tribunal will decide whether the employer's choice of pool was within the range of reasonable responses that a reasonable employer could have adopted in the circumstances.
Fortunately, the employer sets the pool, meaning that if careful thought is applied, it is hard for the chosen pool to be challenged as unfair. That is not to say it is impossible for the pool to be deemed unfair or discriminatory, only that it is difficult for an employee to establish this when a pool is formed for objective business reasons.
There is no need to limit the pool to employees that complete the same or similar work, though this could be an important factor. An employer can draw from a wider pool of employees if necessary and reasonable. In most cases, it will make sense for the employer to keep the pool relatively narrow, so that the process is more contained and so there is less scope for employees to compare themselves to others and complain.
In setting the pool, an employer will need to consider a range of factors, including:
A sensible starting point for drawing up the pool is to consider what the employees do in practice regarding their day-to-day activities and the terms of their contract, rather than simply going off what their contract or job title says.
It is possible to have a redundancy situation that only impacts a single employee. Generally, an individual redundancy process will be justified where an employee occupies a unique role that is distinctly affected by the redundancy situation. However, employers must be careful when taking this approach, as Employment Tribunals will carefully scrutinise such decisions.
Once a pool is chosen, an employer must adopt reasonable selection criteria for putting employees at risk of redundancy.
Where relevant, the selection criteria should be discussed with any recognised trade unions at the start of the exercise or, in a collective consultation scenario, with employee representatives.
Unless there are prior agreements on selection criteria with trade unions or employee representatives or set out in company policies, the selection criteria can be anything the employer likes. However, to be reasonable, the redundancy selection criteria should be both objective and capable of independent verification. This means that the criteria should be measurable and evidenced, rather than based on personal opinion.
Potentially fair selection criteria include:
It is helpful if there are existing performance targets or performance records to be drawn on as evidence; otherwise, the manager's general view on performance can be used.
A "last in, first out" approach used to be common practice in redundancy situations, but it is now widely accepted that length of service will be unfair if used on its own. However, if combined with other factors, an employer can give reasonable weight to length of service as a means of rewarding loyalty (whilst this could also be viewed as age discrimination, case law has shown it can be justified in the right circumstances).
However, this should not take account of absences that were caused by disabilities or by pregnancy and maternity leave. Thorough and organised sickness records are a big help in evidencing scores for attendance.
An employer might make deductions for any past disciplinary sanctions that an employee has received. Again, written records are useful evidence.
It is good practice to have two managers complete the scoring separately, with averages of their two sets of scores then being used to select employees from the pool for redundancy. This can be useful to support the objectivity of the selection, especially if there is a lack of evidence and written records.
An employer should, so far as possible, rely on objective selection criteria, as they are far more likely to be deemed reasonable by an Employment Tribunal, and they can also normally be supported by evidence. Subjective criteria should be avoided, but, as noted above, there may be a need for a manager to rely on their personal opinion to an extent, particularly if the employer has poorly written records or a lack of evidence to draw on.
Examples of selection criteria that the Employment Tribunal has found to be subject and unfair include:
An employer should look for objective scoring criteria that it can support with evidence. Factors that might be seen as subjective or discriminatory should be avoided. In addition, factors which put part-time employees at a disadvantage will be unfair, such as giving weighting in the scores to employees on full-time hours.
An employer should take a patient approach in discussing its selection process with employees.
Some employers can be reluctant to divulge information about the selection process to employees. However, we find that this normally only leads to suspicion and complaints, and there have been cases where a failure to sufficiently divulge the workings of the selection process made the dismissal unfair.
If the selection criteria and scoring have been planned properly using the principles outlined in this article, there is no reason not to provide employees with the selection criteria. Employees should be given sufficient time to question the selection criteria and their score. An employer might even ask employees to score themselves so that the employer can factor this into the scoring process and better justify its scores.
The more transparent an employer is around its choice of pool and selection criteria, the less likely the employer is to receive legal claims from unhappy employees, and the more likely it is that an Employment Tribunal will view the process as reasonable.
An employee may ask to see how their colleagues were scored. An employer has no obligation to provide this, but, again, a transparent approach helps. The employer may choose to provide anonymised details of all the scores to show where they ended up in the scoring without disclosing identities.
The more thought an employer puts into the pooling and selection process, and the more transparent and patient they are in their discussions with employees, the less likely the employer is to receive legal claims from unhappy employees. Moreover, in the event of a claim, an Employment Tribunal is more likely to find the process (and the eventual dismissal) to be fair and reasonable.
In part three of this series, we will be exploring how redundancy consultation meetings should be handled, the need to consider suitable alternatives to redundancy and tricky issues that might arise in consultation.
You can also try our Myerson HR Portal on a free trial which includes redundancy documents for an individual process.
If have any more questions or would like more information regarding redundancy, you can contact our Employment Team below.