Fair redundancy selection criteria — and what to avoid

Selection criteria are the legal heart of any redundancy process. Fair criteria, applied consistently, are defensible at tribunal. Unfair criteria — or fair criteria applied unfairly — make a dismissal unfair, and from January 2027 with no compensation cap, expensive.

What makes criteria fair

• Objective — capable of measurement, not based on opinion alone.
• Consistently applied — every employee in the pool scored on the same criteria using the same method.
• Non-discriminatory — neither directly nor indirectly disadvantaging a protected group.
• Documented — scores, evidence and rationale recorded for each employee.

Commonly used fair criteria

• Skills and aptitude — measured against a defined skills matrix.
• Performance — based on documented appraisals, not retrospective opinion.
• Attendance record — but with careful exclusions (see below).
• Disciplinary record — only live warnings, not expired ones.
• Qualifications — relevant to the role being made redundant.
• Length of service — can be a tie-breaker, but cannot be the sole or dominant criterion (age discrimination risk).

Criteria that are almost always unfair

• Pregnancy or maternity-related absence — automatically unfair dismissal.
• Disability-related absence without making reasonable adjustments — likely disability discrimination.
• Trade union membership or activities — automatically unfair.
• Part-time working status — likely indirect sex discrimination.
• Age alone — age discrimination.
• Subjective opinions about attitude, "fit", or potential — too easy to discriminate, hard to defend.

Selection pools

The selection pool is the group of employees from which redundancies are made. Defining the pool is itself a defensible choice — but it must be:

• Reasonable in scope. Drawing the pool too narrowly to engineer a specific outcome is challengeable.
• Consistent with the business reason for the redundancy.
• Documented with the rationale recorded.

Employees have the right to know how the pool was defined and to challenge it.

ERA 2025 implications

From January 2027:

• The unfair dismissal qualifying period drops from 2 years to 6 months.
• The compensation cap is removed.
• Fair, documented selection is more important than ever — both more employees can claim and the financial exposure per claim is uncapped.

What employees can challenge

• The pool — was it drawn fairly?
• The criteria — were they objective?
• Their score — they have the right to know how they were scored against each criterion.
• The decision — was it consistent with the scoring?

Official source: ACAS — Redundancy: handling the process.