Sometimes you just know. You look at who's being kept on and who's being let go, and it doesn't add up. If you've got that feeling, it's worth investigating.
Your employer must use fair, objective, and measurable criteria to decide who is made redundant. If they used vague criteria, applied them inconsistently, or let personal bias influence the scoring, your selection could be unfair.
What does fair redundancy selection look like?
When an employer needs to reduce headcount, they can't just pick whoever they want. They have to follow a process, and a key part of that process is how they decide who goes and who stays. ACAS has useful guidance on what's expected.
Fair selection criteria are things that can be measured objectively. Common examples:
- Skills and qualifications relevant to the role going forward
- Performance records based on documented appraisals, not gut feeling
- Attendance record (but not disability-related absence, which must be excluded)
- Disciplinary record
- Length of service (though this shouldn't be the only factor as it can indirectly discriminate on age)
Your employer should score everyone in the "selection pool" (the group of people doing similar work) against the same criteria, and the lowest scorers are the ones selected for redundancy.
What are the red flags of unfair selection?
You weren't shown the criteria. You have the right to know what criteria were used and how you were scored. If your employer won't tell you, ask in writing. If they still refuse, that's a significant process failure.
The criteria are vague or subjective. Things like "attitude," "cultural fit," or "flexibility" are hard to measure objectively and easy to manipulate. If your employer used criteria like these, they're on weak ground.
The scoring doesn't match reality. If you were scored low on performance but your last appraisal was good, something doesn't add up. Ask to see the evidence behind the scores.
The pool seems wrong. The selection pool should include everyone doing similar work. If your employer only put you and one other person in the pool when there are ten people doing the same job, they may have rigged it.
You were the obvious target. If you'd recently raised a grievance, gone on maternity leave, blown the whistle on something, or been off sick with a disability, and then you're the one selected for redundancy, that's suspicious. Selection based on these factors is automatically unfair under ERA 1996, s.105.
Last in, first out without justification. Pure "last in, first out" selection can be indirect age discrimination because younger workers tend to have shorter service. It can be used as one factor among several, but it shouldn't be the only one.
What should I do if my selection was unfair?
Ask for the details in writing. Send your employer an email asking them to share the selection criteria, how you were scored, and how others in the pool were scored (they can anonymise the other scores). Frame it as wanting to understand the decision.
Compare your scores to reality. If they share the scoring, go through it carefully. Does each score match the evidence? If you were marked down on performance, check your last appraisal. If you were marked down on attendance, check whether disability-related absence was included (it shouldn't be).
Look at who was kept. Without being confrontational, think about whether the outcome makes sense. Were less experienced or less qualified people kept on? Were you the only one with a protected characteristic?
Raise it in consultation. If you're still in the consultation period, raise your concerns formally. Put it in writing. Your employer is supposed to genuinely consider what you say.
Use it in negotiation. If the selection criteria or scoring are questionable, this is leverage. Your employer knows that a tribunal would examine this closely. Pointing out the weaknesses calmly and factually often leads to an improved offer. See our guide on how to negotiate your redundancy pay for more on this.
What happens if I take unfair selection to a tribunal?
If an unfair dismissal case reaches a tribunal, the judge will look at whether the employer used objective criteria, applied them fairly, and consulted properly. The employer has to prove they acted reasonably.
If they can't explain why you scored lower than colleagues, or if the criteria look like they were designed to target you, the tribunal is likely to find the dismissal unfair.
The potential compensation for unfair dismissal is a basic award (similar to statutory redundancy pay) plus a compensatory award of up to 52 weeks' pay or £123,543, whichever is lower. If the selection was connected to a protected characteristic like pregnancy or disability, compensation is uncapped.
Your employer knows these numbers. That's why raising selection fairness in a negotiation gets their attention. If they offer you a settlement agreement, the amount should reflect these risks.
This article is general guidance about redundancy rights in England, Scotland and Wales (not Northern Ireland). It's not legal advice and shouldn't be treated as a substitute for advice from a qualified employment solicitor.