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.
A comprehensive guide explaining unlawful redundancy selection in England and Wales, including discriminatory practices, unfair criteria, consultation duties, employee rights, tribunal risks, and how employers can ensure lawful redundancy decisions.
Redundancy selection in England and Wales must comply with strict legal requirements. When employers fail to apply fair, objective, and non-discriminatory criteria, the process may be considered unlawful. Unlawful redundancy selection can expose employers to employment tribunal claims, protective awards, and compensation payments. Understanding what constitutes unlawful selection is crucial for employees to recognise their rights and for employers to avoid legal risks.
Legal Framework
Unlawful redundancy selection is primarily governed by:
- Employment Rights Act 1996 – defines redundancy and employee protections;
- Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) – sets out collective consultation requirements;
- Equality Act 2010 – prohibits discrimination on protected characteristics;
- Acas Code of Practice on Redundancy – provides guidance on fair selection processes.
Tribunals review redundancy selection for fairness, objectivity, and compliance with statutory requirements.
What Constitutes Unlawful Redundancy Selection
Redundancy selection may be unlawful in the following scenarios:
1. Arbitrary or Subjective Selection
Selecting employees based on personal preference, favouritism, or non-job-related reasons is considered unlawful. For example, dismissing staff because of personality clashes or managerial bias violates fairness principles.
2. Discrimination
Employers must not base redundancy decisions on protected characteristics under the Equality Act 2010, including:
- Age;
- Sex or gender reassignment;
- Race or ethnicity;
- Disability;
- Religion or belief;
- Sexual orientation;
- Union membership.
Any redundancy decisions influenced by these factors are unlawful and may result in discrimination claims.
3. Inconsistent Application of Criteria
If selection criteria are not applied equally to all employees in the pool, redundancy may be considered unlawful. For example, using performance records for some employees but ignoring them for others undermines fairness.
4. Ignoring Consultation Requirements
Failing to consult employees or their representatives, particularly in collective redundancies, breaches TULRCA duties. Employers must engage in meaningful consultation, consider alternatives, and respond to proposals.
5. Failure to Consider Alternatives
Employers must explore alternatives to dismissal, such as:
- Redeployment to other roles;
- Retraining or upskilling;
- Flexible working arrangements;
- Voluntary redundancy schemes.
Neglecting reasonable alternatives may render redundancy unlawful.
Consequences of Unlawful Redundancy Selection
Unlawful selection exposes employers to several legal risks:
- Unfair dismissal claims – employees may seek compensation through employment tribunals;
- Discrimination claims – if selection breaches the Equality Act 2010;
- Protective awards – in collective redundancies, tribunals may award up to 90 days' pay per affected employee;
- Reputational and financial risks – legal costs, compensation payments, and damage to employer credibility.
Tribunals assess whether employers acted reasonably, applied criteria objectively, and conducted proper consultation.
Steps to Avoid Unlawful Selection
Employers should:
- Define a fair and relevant selection pool;
- Establish objective, job-related selection criteria;
- Apply criteria consistently to all employees;
- Document all decisions and rationale;
- Conduct meaningful consultation with employees or representatives;
- Consider redeployment or alternatives;
- Provide appeal processes for employees to challenge decisions.
Compliance ensures lawful and defensible redundancies.
Employee Rights
Employees affected by redundancy have the right to:
- Be informed of the criteria and process;
- Participate in consultation discussions;
- Be considered for redeployment or alternative roles;
- Appeal decisions;
- Seek tribunal claims for unfair dismissal, discrimination, or protective awards.
Understanding these rights helps employees identify potential unlawful redundancy selection.
Key Takeaways
Unlawful redundancy selection occurs when employers apply arbitrary, discriminatory, or inconsistent criteria, fail to consult employees, or ignore alternatives to dismissal. Compliance with the Employment Rights Act 1996, TULRCA, the Equality Act 2010, and Acas guidance ensures that redundancies are lawful, fair, and defensible. Employees have rights to consultation, appeal, and legal remedies if redundancy selection is unlawful.
