During the redundancy process selection pools are often required to ensure things remain fair and legally above board.
Where there is only one person performing a role and that role is redundant, a selection pool is not generally necessary. However, you should consider a pool if two or more employees carry out the same type of work, which has diminished, or is expected to diminish as part of the redundancy process.
Read our full guide on the redundancy process here.
It is difficult for an employee to challenge the employer’s choice of pool at law, unless they can argue that the choice was motivated by discrimination or bias. We recommend you inform your employees about the pool when you place them ‘at risk’ so they have an opportunity to raise any concerns before you carry out the selection.
Once the pool has been agreed (where possible) you should determine how employees will be selected from that pool. You should draw up a list of criteria which are non-discriminatory in nature. It is also best if the criteria can be scored with reference to objective evidence such as appraisals or other employment records.
All criteria must be fair. For example, ‘flexibility’ as a selection criterion could be indirectly discriminatory on the grounds of sex. This is because a greater proportion of women than men take primary childcare responsibility. They would, therefore, be adversely affected and less able to comply with this criteria.
It is always best to consult with a lawyer when choosing criteria to avoid discrimination pitfalls.
Best practice is then to consult with your employees before scoring them against the criteria.
Most selection processes involve ‘scoring’ against the criteria, with weighting (as appropriate) where certain criteria are more important. The roles of the lowest scoring employees are then provisionally selected for redundancy. Examples of commonly-used scoring criteria include:
Performance (with reference to appraisal records)
Skills (as measured against the job description)
Disciplinary (with reference to any records)
Sickness (with reference to any records and discounting any periods of absence for disability, or pregnancy-related reasons)
We recommend to always avoid using ‘Length of Service’ as a decisive selection criterion. This is because it could be indirectly discriminatory on the grounds of age, as younger employees are less likely to have longer periods of service than older employees.
You should always avoid potentially subjective criteria, as these would be open to challenge.
Alternatively, an employer may choose to conduct a competitive interview process. This involves assessing the employee against the skills and competencies required for the role. Typically, this form of selection is easier to challenge because it involves more subjectivity on the employer’s part.
If you need assistance with any of the above within your workplace, get in touch with our team who are happy to help.