Selection order for dismissals and layoffs in detail
There is no statutory selection order for dismissals under UK law.
However, an employer who wishes to mitigate the risk of successful unfair dismissal claims in a redundancy situation where more than one employee performs the role to be eliminated must first identify an appropriate ‘pool’ of employees to whom the selection criteria will be applied. Employers have some flexibility in defining this pool and it is difficult for an employee to challenge the choice made if the employer has genuinely applied its mind to the issue.
Most employers use a matrix of criteria for this purpose, including factors such as:
- relevant skills and knowledge;
- relevant experience;
- relevant qualifications or training;
- disciplinary record;
- attendance record;
- communication skills (verbal/written);
- time management/productivity.
The selection criteria applied should be as fair and objective as possible, appropriate to the circumstances, non-discriminatory, and there should be a business justification for the use of each criterion. Employers should be cautious about using subjective criteria such as ‘attitude’ or ‘team player’.
Although the ‘last in, first out’ approach has been used by employers in the past, it runs the risk of falling foul of age discrimination legislation as younger employees are more likely to be selected for redundancy.
Author: Lewis Silkin LLP
Date: December 2019