Selection for redundancy 



In many unionised workplaces, there are agreed procedures for redundancy selection. Redundancy selection procedures are rarely contractual, meaning that changing them without agreement is unlikely to breach the employment contract. By contrast, an agreement to pay enhanced redundancy pay is much more likely to be contractual (see page 435). 



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, 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.



Recent cases have seen some dilution of these guidelines, especially in the context of restructuring where employers create new jobs, require workers to compete for those new jobs and declare the unsuccessful applicants redundant. 



For example, in Morgan v Welsh Rugby Union [2011] UKEAT/0314/10, the EAT suggested that an employer that creates a new job in a restructuring will want to focus on a candidate’s future ability to perform the new job, rather than on their past performance, and that in these circumstances, it is acceptable for the selection process to look more like a job interview than a redundancy consultation meeting, and for the employer to exercise substantial judgment, subject to an overriding duty to act reasonably and fairly , within the "band of reasonable responses" (see Chapter 10, page 355). Mr Morgan’s dismissal was judged fair despite significant departures from the employer’s own procedure. 



The ruling was followed in Samsung Electronics (UK) Limited v Monte-
D’ Cruz [2012] UKEAT/0039/11. In this case, a dismissal after a restructuring was found to be fair even though the employer disregarded evidence of past performance available from performance appraisals; used “nebulous” selection criteria designed for an annual performance review; made no attempt to make sure the selection panel shared a common understanding of the selection criteria, and filled the post with an external candidate.



This kind of approach is perhaps more likely to be judged by a tribunal to be fair in cases where the new role demands high levels of discretion and creativity, and/or is highly rewarded.



Stricter standards, more in line with the Compair Maxim guidelines summarised above, have been enforced in cases of redundancy where the job itself does not change but fewer employees are needed to do it, especially if those at risk are not in senior or management roles. A good example is Mental Health Care (UK) Limited v Biluan [2012] UKEAT/0248/12/SM, a case involving unfair redundancy dismissals from a pool of hospital staff on a ward. And in the recent case of Green v London Borough of Barking & Dagenham [2017] UKEAT/0157/16/DM, the EAT has clarified that in all redundancy situations, irrespective of whether redundant employees are competing for new jobs, tribunals must test the reasonableness of each stage of the decision making process by applying the standard principles of unfair dismissal law set out in section 98(4), ERA 96. In particular, this involves asking whether each step is within the band of reasonable responses of a comparable employer (see page 355).