Unfair Redundancy Selection: When a Redundancy Can Be Unfair

Redundancy is one of the five potentially fair reasons for dismissal under the Employment Rights Act 1996. That does not mean every redundancy dismissal is fair. Many disputes are really about selection and process: who went into the pool, how scores were awarded, whether consultation was real, and whether another role was available.

This guide is for employees in England and Wales. It pairs with how statutory redundancy pay is calculated and the free redundancy pay calculator. Pay and fairness are related but not the same question.

When is a redundancy "genuine"?

In outline, redundancy arises where the employer's need for employees to do work of a particular kind has ceased or diminished (or is expected to), or the workplace closes. Classic examples: site closure, reduced headcount in a team, technology replacing a function.

Labels are not enough. If the role continues and someone else is doing substantially the same job under a different title, tribunals have often looked hard at whether the "redundancy" was genuine.

The fairness framework (short version)

For ordinary unfair dismissal, once a potentially fair reason is shown, the question is whether the employer acted within the band of reasonable responses - including:

1. Warning and consultation about proposed redundancies
2. Fair selection (pool + criteria + application)
3. Search for alternative employment
4. A fair overall procedure

Collective consultation duties can also apply where 20 or more redundancies are proposed at one establishment within 90 days - a separate protective-award regime, covered with the tribunal figures in the redundancy claims data guide. ACAS guidance on managing redundancies sets out practical process expectations.

Selection pools

A fair process usually starts by identifying who is at risk - the pool.

Problems tribunals have typically scrutinised:

• Pool of one when several people do interchangeable work
• Excluding favourites or recent hires without a solid business reason
• Sudden reorganisation that isolates one person who raised a grievance or whistleblowing concern

There is no single mandatory formula for every business, but the employer should be able to explain the pool rationally.

Selection criteria

Criteria should be capable of fair application. Examples often used (not a legal checklist):

• Skills and qualifications relevant to the remaining work
• Experience and performance backed by records
• Disciplinary record
• Attendance (with care - disability-related absence can raise Equality Act issues)

Riskier patterns:

• Entirely subjective "attitude" or "fit" scores with no evidence
• Criteria written after individuals were already chosen
• Marking that ignores the paper trail (appraisals, warnings, training)

Ask for your scores, the criteria, and how others in the pool were marked (data protection and process fairness both matter here). A subject access request is sometimes used to obtain HR notes.

Consultation

Individual consultation should be more than a script announcing a decision already made. In similar situations, fair consultation has typically included:

• Explanation of the business reason
• The provisional selection and how it was reached
• A real chance to challenge scores and suggest alternatives
• Consideration of voluntary options and bumping in some structures

If the first meeting is "you are dismissed today", process risk rises sharply.

Alternative employment

Employers are generally expected to look for suitable alternative employment in their organisation (and sometimes wider group, depending on the facts). Refusing a reasonable alternative without good reason can affect both fairness and, in some cases, redundancy pay. Where you take up a genuinely different role, the law gives a statutory trial period of four weeks (longer by written agreement for retraining) - trying the role does not, by itself, forfeit your redundancy pay if it turns out to be unsuitable and you leave within that period.

What is "suitable" depends on status, pay, hours, location and your personal circumstances - it is not only the employer's preference.

Discrimination and automatic unfair angles

Selection can be unfair and discriminatory. Examples of extra legal layers:

• Pregnancy, maternity and related leave - including priority for suitable alternative vacancies in some redundancy situations
• Disability - criteria that penalise disability-related absence without justification
• Age - last-in-first-out or age-linked criteria can create Equality Act issues
• Whistleblowing or asserting statutory rights - can engage automatic unfair dismissal

See also workplace discrimination and age discrimination at work.

Evidence that often matters

Keep the deadline in view from day one. Redundancy pay calculations do not extend the unfair dismissal time limit.

Redundancy pay vs unfair dismissal

• Statutory redundancy pay - formula based on age, service and capped weekly pay (see the calculator).
• Unfair dismissal - basic award and compensatory award if the dismissal is unfair (see compensation).

You can sometimes be entitled to redundancy pay and still challenge fairness. Settlement agreements can waive claims - only sign with open eyes (and usually independent legal advice on a formal settlement agreement).

Key takeaway

Unfair redundancy selection cases are less about "was I upset?" and more about genuine redundancy + reasonable pool, criteria, consultation and alternatives. Get the documents, challenge scores in writing while consultation is open, and diary the tribunal clock even if a redundancy payment is offered.