Equality and Human Rights Commission

Making sure a redundancy dismissal is fair

This guide only tells you about equality law. There are other laws which your employer needs to follow to make sure a redundancy dismissal is fair, in the sense that the proper procedures have been followed. You can find out more about these from Acas, whose contact details are in Further sources of information.

Your employer must make sure that the redundancy procedures they follow and the criteria they use do not unlawfully discriminate. If you are a disabled person, failing to make reasonable adjustments, including adjustments to redundancy criteria and procedures, is a form of unlawful discrimination. Your employer also has specific considerations to take into account when redundancies affect women who are pregnant or on maternity leave.

This applies whether your employer is seeking volunteers for redundancy or making compulsory redundancies.
 

Which jobs is your employer selecting from? In other words, what is the pool from which they will be making their selection?

Are they, for instance, stopping a particular service or production line or closing a geographical location?

If your employer is not selecting everyone in a particular category of workers, such as everyone in a particular place or doing a particular job which will no longer be needed, they must make sure that their pool selection does not discriminate unlawfully.

For example:

An organisation is facing budget cuts and decides to reduce the size of its marketing team. There are four people in the team (one man and three women) and the employer decides to put just the two people who work part-time, who are both women, into the pool for redundancy, believing that their earnings are less important to them than to those people who work full-time, who are more likely to be ‘breadwinners’. Because women are more likely to work part-time, this criterion will be indirectly discriminatory (having a worse impact on the two part-timers who are women and on other women than it does on men) unless the employer can objectively justify what they have done. An approach which would be less likely to discriminate unlawfully would be to put everyone in the marketing department into
the pool.
 

Once an employer has decided on a pool, they still need to make sure that they think through the consequences of using particular criteria for selection for redundancy from the chosen pool. If they don’t do this, they might still end up discriminating unlawfully.

We look at the following criteria in more detail, because they are criteria where an employer may be more likely to discriminate unlawfully. In each case, whether there is unlawful discrimination will depend on there being a link between the impact of the criterion and the protected characteristic of the person being made redundant:

• Length of service
• Absence record and working hours
• Training and qualifications

Length of service 

It is possible to use a length of service criterion for selecting people for redundancy but only in certain circumstances:

• A criterion like this needs to be used cautiously because it could indirectly discriminate.

For example:

If there are people in the pool who would end up being selected in greater numbers because a length of service criterion has been applied, such as:

• younger people who will not have built up as long an employment record
• women, who often have more interrupted careers, or
• disabled people, whose disability may have interrupted their career
• then using this criterion might be discriminatory.
• Length of service should only be one of the factors your employer considers when selecting people for redundancy.
• As one of several selection criteria, it will probably be lawful (in the sense that it is likely to be objectively justified direct age discrimination) if an employer is using it with the aim of, for example:
  • respecting loyalty and protecting older workers who may find it more difficult to re-enter employment, or
  • retaining experience
• and they can show:
  • that length of service is a proportionate way of achieving their aim
  • why their aim could not be achieved in another way that doesn’t disadvantage the selected workers to the same extent.

Depending on the size and nature of the pool for redundancy selection, they should use additional criteria based on other factors to make sure that they are selecting in a way that does not discriminate.  

If your employer users workers' absence record or working hours to select people for redundancy, they must be careful to avoid direct or indirect discrimination.

For example:

• If a woman is selected because of her absence on maternity leave or because of pregnancy-related illness, this will almost always be direct discrimination because of pregnancy or maternity. Find out more in our guide to managing redundancies that could affect women who are pregnant or on maternity leave.
• If someone is selected because they have taken time off or because they work flexibly to care for a disabled relative, this risks being direct discrimination by association because of disability.
• If a disabled person is selected because they have needed time off or because they work flexibly for a reason connected to their disability, this risks being discrimination arising from disability unless the employer can objectively justify using this criterion.
• If a transsexual person is selected because they have used their right to take leave for treatment related to their gender reassignment, this may well be direct discrimination because of gender reassignment.

This means your employer needs to consider which absences they will include if they are using attendance record as one of their criteria. They should use only those which could apply to everyone regardless of their protected characteristics. This has implications for how absence is recorded, which is explained in our guide: Your rights to equality at work: working hours, flexible working and time off. 

The appropriateness of using qualifications to select people for redundancy will vary according to the situation. If your employer has two individuals working in similar roles, but one has an additional relevant qualification which adds to their ability to do the job, deciding to make the less well-qualified person redundant is unlikely to discriminate unlawfully.

They can also say that a person must have a particular qualification if that qualification is an essential requirement for the job that cannot be met by experience or further training.

However, if your employer uses qualifications which are not especially relevant or define the qualifications too narrowly without thinking through the consequences, they may find they are unlawfully discriminating if those qualifications would have a worse impact on people who share a protected characteristics and cannot be objectively justified. For example choosing to make redundant just those employees with a qualification from a non British university.