When a redundancy process is challenged, tribunals rarely ask “who scored highest?” Instead, they ask something much more important.
“Can the employer explain how those scores were reached?”
That’s why redundancy selection is about far more than completing a scoring matrix. Every score should be capable of being explained, supported by evidence and applied consistently across the selection pool.
If you couldn’t confidently justify your scoring in front of an Employment Tribunal, it’s worth reviewing your approach before the process begins. Hari Singh, Employment Lawyer, explains more…
It starts with choosing the right selection pool
Before any scoring takes place, employers need to identify who should be included in the redundancy exercise. That sounds straightforward, but it’s often one of the most heavily scrutinised parts of the process. Ask yourself:
- Who carries out the same or similar work?
- Whose duties overlap?
- Is there a wider group of employees carrying out interchangeable roles?
A “pool of one” can sometimes be appropriate, particularly where a role is genuinely unique. But, if other employees carry out broadly similar work, employers should be prepared to explain why they weren’t included.
A simple question to ask yourself: Could we clearly explain why these employees were included and other weren’t? If you can’t, your process may already be on shaky ground.
Choose criteria that you can evidence
Not all selection criteria carry the same level of risk. It comes down to objectivity vs subjectivity. Criteria such as:
- Skills
- Qualifications
- Relevant experience
- Performance
- Disciplinary record
- Attendance (with appropriate adjustments where necessary)
Can all be appropriate when supported with objective evidence. More subjective criteria such as:
- Attitude
- Commitment
- Flexibility
- Cultural fit
- Potential
are much harder to defend unless they’re clearly defined and supported by objective examples. “I just felt they were less committed” is unlikely to convince a tribunal. Data, documents and specific examples are your best friends.
Consistency matters just as much as the criteria
Even good selection criteria can create problems if managers apply them differently. For example, two managers may assess the same level of performance very differently.
That’s why moderation is such an important part of the process. Reviewing scores collectively helps identify inconsistencies, challenge assumptions and ensure employees are being assessed against the same standards. Consistent application of the same standard is often what turns a reasonable scoring exercise into a defensible one.
Keep an eye on discrimination risks
Some of the biggest risks don’t come from the scoring itself, but from the impact of the criteria being used. For example:
- Attendance criteria may disadvantage disabled employees or those with pregnancy-related absence
- Flexibility requirements may disproportionately affect employees with caring responsibilities
- Performance assessments may need careful consideration where an employee has been absent due to disability or family leave
Criteria that appears neutral can still create legal risks if it disproportionately disadvantages a protected group. Review your criteria before scoring begins and again once provisional scores have been completed.
Employees should be able to challenge their scores
Scoring shouldn’t be a secret exercise. During consultation, employees should understand how they have been assessed and have the opportunity to challenge provisional scores if they believe something has been overlooked or applied incorrectly.
Sometimes those challenges won’t change the outcome. Sometimes they will. Either way, giving employees a genuine opportunity to comment helps demonstrate that the process was fair and that decisions weren’t predetermined.
Ask one final question…
“If this employee challenged their score in tribunal tomorrow, could we explain every mark we gave?”
If the answer is anything other than an unequivocal yes, it’s worth revisiting the scoring before moving forward. That small investment of time could make all the difference if your decisions are ever under scrutiny.
How can we help?
Whether you’re managing an individual redundancy process or a larger collective exercise, we can help you build a fair, consistent and legally defensible approach to redundancy selection. We can support you with:
Individual redundancies – access to documentation, templates and unlimited employment law advice through our Intelligent Employment platform.
Collective redundancies – end-to-end legal support, including our Collective Consultation Toolkit and expert guidance throughout the process.
Outplacement support – through Working Transitions, part of the Empowering People Group, helping employees navigate redundancy and career transitions with confidence.
What’s next in our Redundancy Risk Series?
In blog #2 we looked at what meaningful redundancy consultation looks like. Next time, we’l answer another question we’re often asked – “How far do we really have to go to avoid making someone redundant?”
We’ll look at suitable alternative employment, redeployment, trial periods and why failing to properly explore alternatives can undermine an otherwise fair redundancy process. See you next week!
This update is accurate on the date it was published but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
