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Methods of selection

If a method for deciding redundancies has been agreed with a trade union, your employer should follow it. Otherwise, there are some common approaches your employer could use and combine when selecting employees for redundancy.

In some cases there may be no need for your employer to follow a selection process because the group of employees to be made redundant will be clear. For example, if your employer is closing down a particular operation in a company and will have to make all the employees working there redundant.

Selection pools

One method your employer could use is to consider which group or section of the workforce the redundancies will be selected from. This is called the ‘selection pool’.

After identifying the selection pool, the employer should apply selection criteria to it, to narrow down the employees. Your employer should, as far as possible, use objective selection criteria that can be applied equally and fairly across the workforce. Examples of selection criteria could be:

• disciplinary records
• experience
• capability
• relevant skills and competence

Your employer cannot select people for redundancy based on the following grounds:

• gender
• marital status
• sexual orientation
• race
• disability
• religion or belief
• age
• trade union membership
• health and safety activities
• working pattern (eg part-time or fixed-term employees)

If your employer does select you for redundancy based on one of these grounds, then your redundancy becomes an automatic unfair dismissal.

• Unfair dismissal

Last in first out

Your employer can look at all employees’ length of service with the company, and select those with the shortest service (the last ones to join). This can sometimes be indirect discrimination on the grounds of age if it affects one age group more than another, unless your employer can objectively justify it.

• Age discrimination

Unfair selection

Your employer must not use personal reasons for selecting you for redundancy. If they use any of the following reasons to base their decision to make you redundant, then the redundancy will be automatically unfair and you may be able to make a claim to an Employment Tribunal for unfair dismissal:

• any reason relating to maternity leave, birth or pregnancy or any other family leave, paternity leave, parental or dependants leave
• you are disabled
• you have transferred employers and are protected under Transfer of Undertakings Regulations (TUPE)
• your membership or non-membership of a trade union
• you are exercising your statutory rights (for example, asking for a written statement of employment particulars)
• whistleblowing (that is, making disclosures about the employer's wrongdoing)
• taking part in lawful industrial action lasting 12 weeks or less
• taking action on health and safety grounds
• doing jury service
• you are the trusteeship of a company pension scheme
  

If you feel that your employer has selected you unfairly you should appeal against the decision. Put your appeal in writing, explaining what you want the employer to do to put the situation right. The way in which you were selected will affect whether your redundancy is considered fair by an Employment Tribunal.

It is definitely unfair if you are chosen for redundancy for discriminatory reasons. These can be direct (for example, because you are on maternity leave). These can also be indirect (for example, more women work part time so it may discriminate against women to choose part-timers).

• Unfair dismissal

It is up to your employer which reasons they use to select employees for redundancy, as long as they can show that they are fair. The most commonly used reasons are:

• last in, first out (where the employees with the shortest length of service are selected first)
• asking for volunteers (self-selection)
• disciplinary records
• staff appraisal markings, skills, qualifications and experience

Sometimes an employer may use a combination of criteria, perhaps using some kind of points system to get an overall score.

Your employer may select people by asking them to reapply for their own jobs. You should remember that this is still just a way for the employer to decide who to select for redundancy. If you decide not to apply or are unsuccessful in your application, you still have a job until your employer makes you redundant.

If you volunteer for redundancy, it is up to your employer whether they actually select you.

• Unfair dismissal

Redundancy notice periods

If your employer has selected you for redundancy you must be given a notice period before your employment ends. The statutory redundancy notice periods are:

• at least one week’s notice if you have been employed between one month and two years
• one week’s notice for each year if employed between two and 12 years
• 12 weeks’ notice if employed for 12 years or more

However, you should also check your contract of employment because your employer could have set out longer notice periods.

Payment in lieu of notice

In some cases your employer may have included a payment in lieu of notice clause in your employment contract. This means that your employer can end your employment contract with no notice, however they must give you payment for all of the pay you would have received during the notice period. This covers basic pay and may include other matters such as the equivalent amount of pension contribution or private health care insurance.

• Payment in lieu of notice (PILON) tax information Opens new window

Where to get help

If you are being denied your rights, talk to your employer first of all. If you have an employee representative (eg a trade union official), they may be able to help. If this doesn't work, you may need to make a complaint using your employer's internal grievance procedure.

Acas (the Advisory, Conciliation and Arbitration Service) offers free, confidential and impartial advice on all employment rights issues.

• How to resolve a problem at work

• Employment contacts

• Joining a trade union

Useful contacts

• Acas (Advisory, Conciliation and Arbitration Service)

• Labour Relations Agency, Northern Ireland

• Citizens Advice Bureau

• Insolvency Service

• Jobcentre Plus