Selection criteria must not be discriminatory

If the selection criteria and/or the selection process discriminate on the grounds of sex, race, disability, sexual orientation, transgender, religion or belief or age, marriage or civil partnership, pregnancy or maternity (or, in Northern Ireland, political opinion), they can be challenged under the Equality Act 2010 (or equivalent Northern Irish equality laws) as well as under unfair dismissal law.

A public sector employer carrying out redundancies must also ensure no breach of its statutory Public Sector Equality Duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations across the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

The Equality and Human Rights Commission (EHRC) has produced a downloadable Code of Practice on Employment under the EA 10. The EHRC recommends that when choosing selection criteria, employers:

• consult with any recognised trade union;

• use a selection matrix containing several separate selection criteria, rather than just one; and

• ensure all chosen criteria are relevant and objective.

Many commonly used selection criteria carry a risk of discrimination, including, for example, attendance, sickness absence, time-keeping, flexibility or language requirements. An employer using these criteria should ensure they are included within a broad range of criteria and should consider how to avoid their discriminatory impact.

Discrimination may be direct or indirect. For general information on equality laws see LRD’s annual employment law guide Law at Work.

Carrying out an equality impact assessment is an important step when devising a redundancy or redeployment procedure but on its own, is not enough to ensure there is no discrimination. Employers must also make sure they implement the procedure without discriminating. For example, in Redcar & Cleveland PCT v Londsdale [2013] UKEAT/0090/12/RN, a Primary Care Trust conducted an equality impact assessment of its redeployment procedure, but then failed to ensure those responsible for implementing it had received proper training. As a result, the chairman of a redundancy consultation meeting wrongly believed there was no duty to treat disabled people more favourably in a redundancy situation, and also voiced doubts as to whether a registered blind person could ever occupy a clinical post. The result was unlawful disability discrimination (see chapter 4).

Unlawful discrimination in redundancy selection can be extremely costly for employers, especially where those unlawfully selected find it difficult to find a new job, for example because of age or disability. In British Sugar v Kirker [1998] IRLR 624, an employee was awarded more than £100,000 when he was scored less favourably because an employer wrongly took account of his severe visual impairment. Some examples from the case law showing how equality law can be used to support disabled members facing redundancy are set out in Chapter 4.