This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Can employers change redundancy selection criteria during consultation? Detailed UK legal guide explaining consultation rules, fairness requirements, tribunal risks, employee rights, and lawful versus unlawful changes under UK redundancy and employment law.
Redundancy consultation is a legally required process in UK employment law designed to ensure fairness, transparency, and meaningful discussion before dismissal decisions are made. One of the most important elements of this process is the redundancy selection criteria used to decide which employees are at risk of dismissal.
A key legal question often arises during restructuring: can employers change redundancy selection criteria while consultation is still ongoing?
The answer is yes, but only within strict limits. Employers may adjust criteria during consultation, but they must act reasonably, genuinely consider employee feedback, and avoid making predetermined decisions. Failure to do so can result in findings of unfair dismissal at an employment tribunal.
This article explains when and how selection criteria can be changed, legal obligations during consultation, employee rights, and tribunal considerations.
What Are Redundancy Selection Criteria?
Redundancy selection criteria are the standards used by employers to decide which employees will be selected for redundancy when fewer roles are available than staff.
Common criteria include:
- Skills and qualifications
- Performance records
- Experience relevant to remaining roles
- Disciplinary history
- Attendance records (used carefully to avoid discrimination issues)
The purpose is to ensure a fair, objective, and evidence-based method of selecting employees for redundancy.
The Purpose of Consultation in Redundancy Processes
Consultation is a statutory and procedural safeguard under UK employment law. It is designed to:
- Allow employees to understand the reasons for redundancy
- Enable employees to challenge assumptions or scoring methods
- Provide opportunities to suggest alternatives to dismissal
- Ensure selection criteria are fair and appropriate
Consultation must take place before final decisions are made, and employers must approach it with an open mind.
Can Employers Change Selection Criteria During Consultation?
Yes. Employers can change redundancy selection criteria during consultation, provided the process remains fair and genuine.
Changes may be appropriate where:
- Employee feedback highlights flaws in the criteria
- The criteria are shown to be unclear or subjective
- Legal risks (such as discrimination issues) are identified
- Operational requirements evolve during restructuring
However, changes must not be cosmetic or used to justify decisions that have already been made.
Tribunals will closely examine whether consultation was real or merely a formality.
Legal Limits on Changing Selection Criteria
Although changes are permitted, employers must comply with key legal principles:
1. Consultation must be genuine
Employers must genuinely consider employee feedback. If criteria are changed only superficially, the consultation may be deemed ineffective.
2. No predetermined outcome
Employers must not fix redundancy outcomes before consultation ends. Changing criteria after decisions are effectively made may indicate unfair dismissal.
3. Consistency and transparency
Any revised criteria must be applied consistently across all affected employees and clearly communicated.
4. Avoiding discrimination
Changes must not indirectly disadvantage protected groups under the Equality Act 2010, such as age, disability, or gender.
When Changing Criteria May Be Necessary
Employers may legitimately revise selection criteria during consultation in situations such as:
1. Feedback from employees or representatives
Employees may highlight that criteria are unclear, subjective, or based on inaccurate data.
2. Legal compliance concerns
Criteria involving attendance or flexibility may risk indirect discrimination claims and require adjustment.
3. Business restructuring changes
If the scope of redundancy changes, criteria may need updating to reflect new organisational priorities.
4. Data accuracy issues
Performance or attendance data may be incomplete or unreliable, requiring correction.
When Changing Criteria May Be Unlawful or Risky
Changes may be legally problematic where:
- Criteria are altered to justify pre-selected employees being made redundant
- Adjustments are made after scoring has already influenced outcomes
- Consultation is used to retrospectively validate decisions
- Employees are not informed of changes clearly or in time to respond
In such cases, tribunals may find the process unfair, leading to compensation awards for unfair dismissal.
Employment Tribunal Approach to Selection Criteria Changes
Employment tribunals assess whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996.
Key questions include:
- Were the original criteria reasonable?
- Were employees properly consulted?
- Were changes made in response to genuine feedback?
- Was the final decision within the range of reasonable responses?
- Was the process transparent and non-discriminatory?
Even if criteria are changed, a dismissal may still be fair if the overall process was reasonable and properly conducted.
Collective Consultation Considerations
Where 20 or more redundancies are proposed within 90 days, collective consultation rules apply.
In these cases:
- Selection criteria are typically discussed with employee representatives or unions
- Changes must be communicated clearly to all parties
- Failure to consult properly may result in a protective award of up to 90 days' pay per employee
Large-scale redundancies require particularly careful handling of any changes to selection methodology.
Employee Rights During Changes to Selection Criteria
Employees affected by redundancy consultation have the right to:
- Be informed of selection criteria used
- Receive explanation of scoring methods
- Challenge or question criteria during consultation
- Be consulted before final decisions are made
- Appeal redundancy decisions in many workplaces
If changes are made, employees should be given a reasonable opportunity to respond before final scoring or selection.
Examples of Fair and Unfair Changes
Example of a fair change
An employer initially uses attendance as a selection criterion but removes it after consultation reveals it disproportionately affects employees with disabilities. This adjustment improves fairness and legal compliance.
Example of an unfair change
An employer revises criteria after scoring employees to ensure a preferred individual is retained. This suggests pre-determination and risks an unfair dismissal finding.
Impact on Redundancy Claims and Compensation
If selection criteria are changed improperly, employees may bring claims for:
- Unfair dismissal
- Discrimination under the Equality Act 2010
- Breach of consultation obligations
- Failure to follow a fair procedure
Compensation may include:
- Basic award (based on age and service)
- Compensatory award for financial loss
- Possible injury to feelings in discrimination cases
Practical Steps for Employees
Employees involved in redundancy consultation can:
- Request a copy of selection criteria and scoring matrix
- Ask for explanations of how decisions are made
- Provide feedback on fairness or accuracy
- Keep written records of consultation meetings
- Raise concerns early during the process
Early engagement often helps clarify whether changes are legitimate or procedurally unfair.
Practical Steps for Employers
Employers managing redundancy consultation should:
- Design objective, measurable selection criteria
- Document reasons for any changes during consultation
- Ensure transparency when updating criteria
- Re-consult employees where significant changes occur
- Avoid finalising decisions before consultation ends
Proper documentation is critical in defending potential tribunal claims.
Common Questions
Can employers change criteria after scoring starts?
They can, but doing so carries legal risk if it suggests outcomes were already decided.
Do employees have to agree to new criteria?
No. Employees cannot veto criteria, but their feedback must be genuinely considered.
Must employers restart consultation if criteria change?
Not always, but significant changes may require renewed consultation to ensure fairness.
Are employers allowed to prioritise certain skills?
Yes, provided criteria are objective, relevant to business needs, and non-discriminatory.
Key Takeaways
Employers can change redundancy selection criteria during consultation, but only where the process remains fair, transparent, and genuinely consultative. Changes must be based on valid reasons such as employee feedback, legal compliance, or operational needs, rather than predetermined outcomes.
The key legal test is whether the employer acted reasonably throughout the process. Improper or cosmetic changes can lead to findings of unfair dismissal, discrimination claims, and financial compensation awards.
