Fiona Martin answers your questions on the law relating to redundancy selection and discrimination
Q: I have to make redundancies and I am preparing the selection criteria. How can I avoid inadvertently discriminating against anyone?
FM: Your criteria will determine how individuals will be selected from your pool of potentially redundant employees. Criteria must not be discriminatory and must stand up to objective assessment. In particular, be careful of indirect discrimination. For instance, could criteria have a disproportionate effect on an ethnic or gender group or a disabled person? Criteria based on flexibility in relation to working hours, for example, may adversely affect single parents. Because a greater proportion of single parents are women, this may constitute indirect sex discrimination.
Likewise, be careful using sickness absence in your selection criteria. Making a decision based partly or solely on time off in relation to pregnancy-related sickness would constitute sex discrimination. Similarly, where an employee’s physical or mental impairment has a substantial and long-term effect on their ability to carry out normal activities they are covered by the Disability Discrimination Act. In such cases you cannot count time-off related to an employee’s disability.
‘First in, last out’ is increasingly unpopular as a selection criteria as it does not consider the skills the business needs going forward. It is also potentially discriminatory both on the grounds of age, as it disadvantages younger employees, and on the grounds of sex as women are more likely to take career breaks. Although both examples of indirect discrimination may be defended if you can objectively justify using such criteria, it would be safer to only use ‘first in, last out’ with a number of other criteria and not make it the sole reason for selection.
Q: One of the people whose role is disappearing has mobility problems covered by the Disability Discrimination Act. There is a possible alternative post, but this would mean travelling 30 miles to a new site. Does this fit the requirement that I have to offer SUITABLE alternative employment?
FM: Employers have a duty to make ‘reasonable adjustments‘ to cater for employee considered ‘disabled’ under the Disability Discrimination Act. What is considered a ‘reasonable adjustment’ will vary depending on your organisation’s size and resources. This duty relates to the entire redundancy process including any offer of alternative employment.
A recent case ruled that travelling 50 miles to an alternative position was too far given the individual’s severe arthritis. The Judgement made it clear that a reasonable adjustment should have been made in the form of an alternative position being offered in the individual’s home town where he had previously worked.
Use the redundancy consultation to ask your employee whether the distance is problematic. If he has problems driving to and from this site - and for business reasons cannot stay where he is - Access to Work may help with finding alternative transport such as taxis and providing funding for these costs.
Q: Some employees in the selection pool are on maternity leave. Should I ask them to come in for meetings?
FM: It is essential to consult with employees on maternity leave. Write to them explaining the situation and give them the option of attending. If they have recently had their babies, offer to liaise by email or telephone. Failure to consult with someone on maternity leave is potentially discriminatory. If you do select employees on maternity leave for redundancy, the reason must have nothing to do with their pregnancy or maternity leave.
For further information see our factsheets:
Legal Advice for Employees Dealing with Redundancy
Redundancy Advice for Employers
This article was published in The Argus, February 2009
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
