While the government’s new Job Support Scheme (weekly LELR 693) may reduce the prospect of redundancies for some, the risk of losing their job remains a real possibility for those workers whose positions may no longer be “viable” when the Coronavirus Job Retention Scheme ends on 31 October 2020.
We consider the obligation on employers to act fairly and reasonably when selecting employees for redundancy.
The selection process
When selecting employees for redundancy, the employer must consider:
- The pool of employees at risk of redundancy;
- The selection criteria; and
- How the selection criteria will be applied fairly and objectively to the pool of employees.
At each stage, the employer must act fairly and reasonably. It is unlawful to select employees for redundancy because they are part-time, on a fixed-term contract or because they are a trade union member or representative. Selecting employees because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) will amount to direct discrimination under the Equality Act 2010.
An employer may also indirectly discriminate against workers with a protected characteristic if for example, selection criteria are applied equally to everyone, but the criteria puts those that share a protected characteristic at a particular disadvantage. In this instance, the employer cannot show that the selection criteria are a proportionate means of achieving a legitimate aim.
Employees who have made a complaint of discrimination under the Equality Act 2010 may be victimised if the reason they are selected for redundancy is because they had made such a complaint.
Pool for selection
Before an employer can apply any selection criteria, they must first decide the pool of employees who are at risk of redundancy. While it is for the employer to decide who should be in the pool, it should be defined fairly, taking into account:
- Whether the employees do similar work, even if it is on different shifts or in another part of the business
- Whether the employees’ jobs are interchangeable
- Previous work the employees have done
- Whether the pool has been agreed with the union
- The qualifications of the employees at risk of redundancy
The way in which the pool is defined can make a significant difference as to which employees are selected for redundancy. For example, if the pool is restricted to all those on furlough then only those employees will be at risk. However, this is likely to be unfair if there are other workers who have returned to work and are doing similar jobs but who are excluded from the pool. It may also be discriminatory if the way the pool has been defined is a sham.
The pool from which employees are selected may be a sham where it is defined purely for the purposes of weeding out a particular employee, for example a trade union representative. This usually happens where the employer defines the pool narrowly. In one case, the employer was held to have acted unreasonably when a sales co-ordinator who had made a complaint of sexual harassment was put into a pool with two administrators who had completely different skill-sets.
The pool should focus on the job not the person. If a trade union representative has been redeployed into another role to accommodate their trade union activities, whether they are included within the pool will depend on the job they are doing at the time.
In some cases, the employer may have agreed the selection criteria with the union or workforce representatives. Where selection criteria have not been agreed, the employer should ensure that they are fair.
Some common criteria which are applied by employers include:
- Length of service
- Disciplinary record
- Performance and ability
Where the employer invites employees to apply for a post, the legal test which applies will depend on whether the employee is applying for a similar job or a completely different job. In the former case, a tribunal is likely to treat the interview as a selection process in which case the employer should consult the employee.
In Gwynedd Council v Shelley Barratt (weekly LELR 688), a teacher who was required to apply for her own job was held to have been unfairly dismissed because the employer had failed to consult her. However, where employees are invited to apply for a completely different job, the tribunal will treat this as an offer of suitable alternative employment since the employees will effectively have already been selected for redundancy. In that case, the employer’s focus is forward looking i.e. on the person’s ability to perform the job.
Applying the selection criteria
Having decided on the pool of employees and the selection criteria, employers then have to apply the criteria fairly. In Eaton Ltd v King, the Scottish EAT stated that it was sufficient for the employer to have set up a good system for selection and to have administered it fairly.
The tribunal held in Williams v Compair Maxam Ltd that the employer should “seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience or length of service.”
Nevertheless, it can be difficult for employees to challenge even subjective criteria unless there is evidence of bias, manipulation or some other fundamental flaw that renders the entire selection unfair.
Objective criteria such as attendance may indirectly discriminate against those who are clinically vulnerable and who have been unable to attend work as a result of coronavirus (COVID-19). If the worker has a disability, it could be argued that the criteria of attendance puts them at a particular disadvantage, namely being dismissed for redundancy. In that case, the employer is under a duty to make a reasonable adjustment which has the prospect of removing that disadvantage.
Similarly, selecting those who work part- time or are employed on a fixed-term contract for redundancy first may also be indirectly discriminatory. In Whiffen v the Governing Body of Milham Ford School, the Court held selecting fixed-term employees for redundancy indirectly discriminated against women since women were more likely to be engaged on a fixed-term contract and so more likely to be dismissed.
It is rare for an employer simply to select someone for redundancy because of a protected characteristic or because they are a trade union representative. However, unfairness and discrimination can creep in at any stage of the selection process. Unions therefore have an important role in scrutinising each step of the selection process to ensure that it is fair, reasonable and does not discriminate.