In order to avoid liability for unfair dismissal and unlawful discrimination, an employer that is implementing redundancies must not only adopt fair selection criteria, it must also apply those criteria objectively. This makes it advisable for a company to ensure that it has documented evidence of the way in which employees were assessed against the criteria it used. It would also be advisable for managers who are involved in the assessment to be given training or guidance on the meaning of the selection criteria and how to assess employees objectively against them.
Any documentary evidence used in redundancy selection - such as attendance, appraisal and disciplinary records - needs to be accurate and up to date. This is necessary not only to ensure that any selection based on this information is fair, but also to meet the requirements of the Data Protection Act 1998 (data protection ). Data protection principles require that employees should have been told in advance that this personal information might be used for redundancy selection purposes.
It is also advisable to bear in mind that if an employee is selected for redundancy on the basis of poor performance or an unsatisfactory attendance record but has never previously been told that he or she is not meeting the required standards, this could lead to an unfair dismissal claim.
Where resources permit, companies should monitor the results of the redundancy selection process, to ensure that it is being carried out objectively and that there is no evidence of bias on the grounds prohibited by the discrimination legislation. If several managers are involved in applying selection criteria, monitoring also enables the company to identify and address any inconsistencies of approach, which might otherwise lead to unfair dismissal claims.