Automatically unfair selection criteria

Some selection criteria are automatically unfair (section 105 ERA 96). If the reason, or if more than one, the main reason, for redundancy selection was one of the following automatically unfair reasons, the dismissal will be unfair. The employer is not allowed to argue that its decision was reasonable. No service is needed for a claim based on one of these reasons:

• a union-related reason (including union recognition);

• participating in protected (i.e. official) industrial action;

• a health and safety reason;

• asserting a statutory right (for example, the right to request flexible working);

• Making a protected disclosure under the Public Interest Disclosure Act 1998;

• taking or requesting leave for family reasons;

• being a trustee of a pension scheme;

• standing as a candidate for, acting as, or being elected as an employee representative for collective redundancy or TUPE purposes, or as a rep under the ICE regulations or of a European Works Council;

• refusing to work on a Sunday (if the employer is a shop or betting shop worker);

• asserting a right under the Working Time Regulations;

• asserting rights under the National Minimum Wage Regulations;

• making a protected disclosure (whistle-blowing);

• asserting rights under the Tax Credits Act 2002;

• asserting a right protected by the Part-time Workers Regulations 2002;

• asserting a right protected by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002;

• asserting a right to request flexible working;

• asserting a right to request time off to study and train;

• a reason related to a prohibited list (a “blacklist”) under the Employment Relations Act 1999 (Blacklists) Regulations 2010;

• asserting a right under the European Public Limited-Liability Company Regulations 2009;

• being absent on jury service; and

• a reason relating to pensions auto-enrolment.