Selection criteria and methods

There should be consultation over both the selection criteria to be adopted and the selection methods to be used.

In practice, the law gives employers a great deal of freedom to decide on selection criteria. A tribunal will only interfere with criteria that are discriminatory or unlawful in some other way, or that no reasonable employer would have chosen: in other words, if it falls outside the band of reasonable responses of an employer (see page 275, Chapter 10: Dismissal).

A tribunal is not allowed to substitute its own views on selection criteria or methods for those of the employer, for example, by adjusting the employer’s scores, or giving more or less weight than the employer to a particular selection criterion. This would be an error of law, and there are many examples of tribunal decisions being reversed for this reason. Only if the outcome is one that no reasonable employer could have reached is it likely to be challenged (see, for example, Stephenson College v Jackson [2013] UKEAT 0045/13/0507, discussed on page 319).

If some selection criteria are more important to the employer’s future business than others, they can be allocated extra points, in a process known as “weighting”.

Selection criteria must not be discriminatory. If either the criteria or the process discriminates unlawfully on the grounds of sex, maternity or pregnancy, race, disability, sexual orientation, religion or belief, age, marital status, or because of gender reassignment, they can be challenged under the Equality Act 2010 (see Chapter 6). The same is true if they result in less favourable treatment of fixed-term or part-time employees, unless it can be objectively justified (see Chapter 2).

Selection criteria that penalise employees for trade union-related reasons, or for carrying out representative functions, will also be unlawful. So too will criteria that result in less favourable treatment of employees who have asked to exercise statutory rights, such as the right to take dependency leave.

A public sector employer, or a private sector employer carrying out a public function, must also ensure no breach of the statutory Public Sector Equality Duty (see page 198).