Selection for redundancy 




In many unionised workplaces, there are agreed procedures for redundancy selection, although they are rarely contractual (see Chapter 3: Collective agreements). An agreement to pay enhanced redundancy pay is much more likely to create legally enforceable contractual rights than an agreement on redundancy selection procedures (see page 405: Enhanced redundancy pay). 




In Kaur v MG Rover [2005] IRLR 40, the Court of Appeal ruled that a promise in a collective agreement that there were to be “no compulsory redundancies” was “aspirational” only and did not create binding contractual obligations. 



An important EAT ruling, Williams v Compair Maxim [1982] IRLR 83, has laid down some basic guidelines for a fair redundancy dismissal. The guidelines, which apply to all redundancy dismissals regardless of how many employees are at risk of redundancy, say that employers should: 




• give as much warning as possible of likely redundancies;




• consult reps on the best way of causing as little hardship as possible to employees;




• draw up agreed selection criteria;



• as far as possible, make sure chosen criteria can be verified objectively, for example, via attendance records, rather than relying on the subjective opinion of a manager; 




• carry out the selection exercise fairly, following the agreed criteria;



• consider any representations; and 




• offer alternative employment where possible.




When deciding whether a redundancy dismissal is fair or unfair, tribunals must apply the normal principles of fairness set out in section 98(4), ERA 96 (see Chapter 10, page 324). These involve testing whether the employer acted within the band of reasonable responses at every stage of the redundancy process, taking into account the particular context (Green v London Borough of Barking & Dagenham [2016] UKEAT/0157/16/DM). 


Redundancies often arise out of restructuring exercises, where employers create new jobs, require workers to compete for those new jobs and declare unsuccessful applicants redundant. Sometimes these processes look more like “recruitment” than redundancy (Morgan v Welsh Rugby Union [2011] UKEAT/0314/10). However, they are redundancy dismissals, and all the normal standards of fairness must be met, or else the employer risks a finding of unfair dismissal (Green v London Borough of Barking & Dagenham [2016] UKEAT/0157/16/DM).


Sometimes employers use non-legal terms such as “assimilation” to describe structural workforce changes. Legal principles of fairness, reasonableness and non-discrimination will apply, whatever label is chosen.