I am an HR Manager and am about to start a redundancy consultation exercise within our company, we plan to make around ten redundancies. I’ve been told that I can select employees for redundancy, without consulting with the employees at all beforehand about the redundancy process. I am concerned that this may not be the correct procedure to follow. How do I handle it?

Rachel Richardson writes:

From your question, I assume that this is the first time you have engaged in a redundancy consultation exercise and you are right to be concerned, as if you do not follow the correct procedure from the outset, then the company will be placed at a much higher risk of unfair dismissal claims. If you had been planning on making 20 or more redundancies, then collective consultation rules would apply to the process, however that is not the case here. It is very important that an employer is open and transparent with its employees about possible redundancies within the business and that it has satisfied itself that a genuine redundancy situation does exist, before commencing any consultations.

In order to identify groups of employees at risk of redundancy, you will have to start by considering the type of work which you have identified that will be reducing or disappearing, you will then need to consider which employees carry that work out. This sounds like a simple exercise, but in fact can often be quite difficult. It will be necessary to consider whether there are employees who possess skills which are interchangeable and if this is the case then the pool for selection may be wider than originally thought. Note that if you do not identify the correct selection pool, then even if the remainder of the procedure is fair, the resulting dismissal(s) could be found to be unfair or discriminatory.

In terms of consultation, you should initially consult with all employees in a group consultation meeting, to alert them to which areas of the business are at risk of redundancy. You should be prepared to deal with any queries arising on why redundancies are necessary and you may wish to consider, at this point, seeking volunteers for redundancy and then setting aside a period of time to deal with any applications.

In the absence of obtaining enough volunteers then, you should in a subsequent meeting, consult with the “pools” of employees which you have identified as being at risk, to advise them as to why they have been identified as at risk and to inform them of the proposed selection criteria that you will be applying to them, in the scoring exercise.

As regards selection criteria, you should ensure that these are fair and objective. The criteria used should be capable of measurement against HR records. Examples of fair selection criteria include: disciplinary records, attendance records, length of service and performance. Performance could be challenged as being too subjective by employees at risk and so you will need to ensure that robust records exist which can clearly measure this such as current appraisals. As regards scoring, if you wish you could attach weightings to the criteria, but again you will need to be able to justify their use if you are ever challenged on them.

Once you have decided on the criteria that you will use, you should share this with the employees at risk of redundancy. You should give them time to go away and consider them and revert to you with any queries or challenges on them, prior to your starting the scoring process. By being open with the employees at risk regarding the criteria, then you will be in a much stronger position when moving on to the scoring stage and will be less likely to be challenged at a later date on the criteria.

The next stage will then be the scoring process which I would recommend should be carried out by two members of staff, this will help to demonstrate, with two people engaged in the exercise, that the criteria was applied objectively and fairly. After the scoring exercise has taken place, you should then write to each of the employees, who have come out lowest in the scoring exercise and inform them of their provisional selection for redundancy and invite them to a consultation meeting. They should be informed that at this stage, no decisions have been taken and redundancies have not been confirmed. The usual redundancy consultation process should then continue.

Therefore, I would strongly advise against the process suggested in your query, as if it were to be adopted, employees selected for redundancy could allege that their redundancy was a foregone conclusion, due to lack of consultation with them, prior to selection and scoring having been carried out.