This guide is maintained as a current resource for July 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.
Comprehensive guide to redundancy selection and discrimination risks under UK law. Explains lawful selection criteria, protected characteristics, how discrimination can arise in redundancy decisions, employer duties, tribunal claims, and practical rights for employees.
Redundancy is a legally recognised reason for dismissal when an employer's need for employees to do particular work decreases or disappears. However, the process used to select which employees are made redundant must be lawful and fair. Improper or discriminatory selection can give rise to claims for unlawful discrimination under the Equality Act 2010 or unfair dismissal claims in an employment tribunal. This guide explains how redundancy selection should work, the legal risks of discriminatory practices, and what employees and employers should consider to stay within the law.
Understanding Redundancy and Selection
Redundancy occurs when an employer's business needs change and the role itself no longer exists. Employers must identify a genuine redundancy situation and follow a fair process. A key part of this process is selecting which employees from a group of roles (a selection pool) are at risk of redundancy.
A selection pool should include all employees with the same or similar roles so that selection criteria apply across an appropriate group. Employers may have more than one pool if different types of roles are affected.
Employers will usually define selection criteria to assess employees in a transparent and objective way. Common criteria include performance, skills and qualifications, and attendance records. The law requires these criteria to be applied consistently and objectively.
Legal Framework: Discrimination and Redundancy
The Equality Act 2010 prohibits discrimination in the workplace on the basis of protected characteristics such as age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, pregnancy and maternity, and marriage or civil partnership. Selecting an employee for redundancy because of a protected characteristic is unlawful discrimination.
Discrimination can take different forms:
- Direct discrimination occurs when an employee is selected for redundancy specifically because of a protected characteristic.
- Indirect discrimination arises where a neutral criterion disadvantages employees with a protected characteristic unless the employer can objectively justify it.
- Failure to make reasonable adjustments for disabled employees in the redundancy process also constitutes unlawful discrimination.
For example, using a criterion like last in, first out (LIFO) on its own may disproportionately affect younger employees or those with interrupted careers, such as women returning from maternity leave or individuals with disability‑related absences. If that effect cannot be justified as proportionate and necessary for the business, it risks indirect discrimination.
Criteria and Discrimination Risks
To avoid discrimination risks, employers should ensure that redundancy criteria:
- Do not relate to protected characteristics (e.g. age, sex, race, disability).
- Do not include absence records without context, especially when absences relate to disability or pregnancy.
- Are objective and measurable to minimise subjective bias.
- Are used consistently across all employees in the same selection pool.
Examples of criteria that could pose discrimination risks include:
- Penalising employees for part‑time or fixed‑term status without objective justification.
- Using flexible working or attendance criteria that disproportionately disadvantage a group protected by equality law.
- Subjective measures such as “cultural fit”, which are difficult to justify objectively.
Employers should also consider reasonable adjustments to criteria or the process itself where employees have disabilities to ensure no one is disadvantaged.
Unlawful Reasons for Redundancy Selection
Selecting an employee for redundancy for the following reasons can give rise to automatic unfair dismissal claims and discrimination complaints, regardless of length of service:
- Being pregnant or on maternity leave.
- Trade union membership or activities.
- Health and safety activities.
- Whistleblowing (making protected disclosures).
- Taking part in lawful industrial action.
- Exercising statutory employment rights.
- Working pattern (e.g. part‑time or fixed‑term) without lawful justification.
If an employee is selected for redundancy because of any such reason, the dismissal is likely to be automatically unfair and/or unlawfully discriminatory.
Employer Duties and Good Practice
Employers should:
- Consult employees meaningfully before finalising selection criteria and making redundancy decisions.
- Use a selection scoring matrix with multiple criteria to reduce reliance on a single factor that may discriminate.
- Document decisions and evidence to show that criteria were applied fairly.
- Provide employees with an appeals process to challenge their redundancy selection.
- Conduct equality impact assessments to check for adverse effects on groups with protected characteristics.
Training of managers involved in redundancy decisions can help reduce bias and legal risk.
Legal Remedies for Employees
If an employee believes they have been selected for redundancy in a discriminatory manner or in breach of a fair process, they can take the following steps:
- Raise a grievance internally setting out the reasons why the selection or redundancy process appears unfair or discriminatory.
- If unresolved, pursue early conciliation through Acas before presenting a claim to an employment tribunal.
- Employment tribunal claims can be brought for unlawful discrimination and unfair dismissal. For discrimination under the Equality Act, there is no minimum service requirement; for unfair dismissal (non‑automatic), the employee generally needs at least two years' continuous service.
Potential outcomes include compensation for financial loss, injury to feelings, and other tribunal awards.
Time Limits and Practical Considerations
Most claims in an employment tribunal must be presented within three months less one day from the effective date of dismissal or discrimination act. Sometimes extensions are possible if it is just and equitable to do so, but these are discretionary. Employees should seek timely advice and preserve evidence such as documentation of the selection criteria and communications with the employer.
Summary
Redundancy selection must be conducted fairly and in compliance with the Equality Act 2010 and other employment law principles. Employers must avoid discriminatory criteria and practices that disadvantage individuals because of protected characteristics or for unlawful reasons. Clear, objective, consistently applied criteria and meaningful consultation help minimise discrimination risks and legal challenges. Employees who believe they have been treated unfairly can raise grievances and, if necessary, bring claims to employment tribunals within statutory time limits.
