Checklist — redundancy selection and indirect discrimination

• check the proportions of workers affected. Are women, temporary or part-time workers, disabled, younger or older workers disproportionately targeted, relative to the rest of the workforce? Why is this?

• what about past practices? Has the employer discriminated before?

• do the selection criteria reward employees who can be more flexible because they have no caring responsibilities?

• do the selection criteria reward willingness to attend social functions?

• is LIFO being used (see page 346), or is length of service rewarded in some other way?

• if attendance is rewarded, is disability-related absence excluded? What about emergency dependency leave?

• if performance is rewarded, has extra training been offered to disabled workers where appropriate?

• has there been proper consultation at every stage? A policy is less likely to be indirectly discriminatory — and more likely to be judged necessary and proportionate — if it has been negotiated by a recognised union;

• what is the employer’s justification for choosing indirectly discriminatory selection criteria? What is the employer’s concrete evidence:

◊ that all other reasonable non-discriminatory alternatives were properly considered;

◊ that the chosen criteria are “necessary” to achieve fair redundancies in the available timescale at the affected workplace;

• if the employer is a public body or carrying out public functions, has an equality impact assessment of the redundancy plans been carried out? Although there is no formal statutory duty to carry out an equality impact assessment, it remains the best way to test for hidden discrimination.