Redundancy selection and discrimination

Selection criteria must not be discriminatory. If either the criteria or the process discriminates unlawfully on the grounds of sex or pregnancy, race, disability, sexual orientation, religion or belief, age, marital status or because of gender reassignment, it can be challenged under the Equality Act 2010 (see Chapter 6).

Employers cannot offer different redundancy pay packages to men and women. Nor can they select for redundancy on discriminatory grounds, for example, by choosing women over men or by allowing redundancies to fall in areas that are predominately female without justification.

Employers can use sickness absence as a criterion for selection but should consider whether adjustments are needed for disabled workers.

In Travis v Electronic Data Systems Limited ([2004] UKEAT 0476/03/0403, the EAT decided that where a lengthy disability-related absence resulted in de-skilling and loss of security clearance exposed the claimant to the threat of redundancy, it would have been a reasonable adjustment to offer training to re-skill him.

In Berry v GB Electronics (EAT/0882/00), the employer discriminated against Mr Berry, a profoundly deaf employee, by calling him into a meeting to announce his impending redundancy without arranging for a signer to be present.

In Lancaster v TBWA Manchester ([2011] UKEAT 0460/10), it was not a reasonable adjustment to require the employer to alter selection criteria for a core requirement of the role. In this case, Mr Lancaster, a senior art director, suffered from social anxiety disorder. Subjective selection criteria such as “ability to demonstrate communication skills” placed him at a comparative disadvantage when competing for a senior level creative post. Even so, his redundancy was fair because these were core requirements of the new role.