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Redundancy selection: The Krypton factor

Selecting employees for redundancy is a difficult process, often an exercise in removing part of the workforce so that the whole may continue to work and hopefully grow once again. In seeking to make the unpleasant choices there should naturally be a degree of objectivity in the selection methods used. Often this is done via a matrix of key attributes (such as absences, sales records etc.) where candidates for redundancy are ‘scored’ against colleagues also up for selection.

An increasingly popular trend of selection however now revolves around competency tests; a practical assessment of the candidate’s skills in the role they doubtless are trying to retain. On the face of it, this seems like a very fair way of gauging the skills of the relevant employees. However according to the recent Employment Appeal Tribunal (EAT) decision in Mental Health Care (UK) Ltd v Biluan & Anor,employers should be very cautious about the extent to which they rely on the results of such assessments in deciding redundancies.

Here the employer sought to make employees redundant via both a selection matrix and a competency test, the latter making up 60% of the available points on offer, with employees being selected solely on the basis of their final scores. The employer failed however to take account of past performance appraisals or the views of the relevant managers, leading to what were described as several ‘good employees’ being unexpectedly selected on the basis of low scores on the competency test.

The original Tribunal and later the EAT found that this method was too objective and that an account of past performance and the subjective opinions of management, who could comment on the abilities of the staff concerned, should have been included in the selection process. The redundancy dismissals on the basis of the competency tests were therefore held to be unfair.

Although the employer was applauded by the EAT for their intention of total objectivity in the selection process, overall this process was found to be too objective if anything, and that choosing an “elaborate, HR driven method” alone, instead of considering the results of such testing alongside the trusted, albeit subjective, opinion of line managers, was incorrect.

Conclusion

The lesson here then is that while a survival of the fittest, Krypton Factor type selection process may initially seem like a solid option for removing much of the difficulties, and ironically unfairness, in selecting employees for redundancy, an employer can it seems go too far in seeking to ‘automate’ the process in removing past performance and management input from the selection criteria.

Redundancy is a delicate and unpleasant process, fraught with legal pitfalls. When forced into making such redundancies it is highly recommended that comprehensive legal advice is sought in planning the process so as to avoid potential claims. As above, even where an employer goes out of its way to implement what it believes to be a fair, impartial and robust procedure, this can clearly still be called into question and ultimately translate into costly claims for unfair dismissal.

If you need advice in making redundancies or are being made redundant please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation.


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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