What Is Wrongful Dismissal Linked To Redundancy Selection?

Wrongful dismissal linked to redundancy selection arises where an employee is dismissed for redundancy but the employer fails to follow the contractual terms of employment or a fair redundancy process in selecting employees. It is distinct from unfair dismissal, although both claims may overlap in redundancy situations.

In UK employment law, redundancy is a potentially fair reason for dismissal under the Employment Rights Act 1996, but the selection process must still be lawful, objective, and consistent. Where it is not, the dismissal may become legally challengeable.

Understanding Redundancy and Selection

Redundancy occurs when an employer's need for employees to do work of a particular kind ceases or reduces. This can result from:

• Business closure
• Workplace relocation
• Reduced demand for work
• Organisational restructuring

However, the employer must decide which employees within a “selection pool” are dismissed, unless only one employee is affected.

Guidance from UK employment authorities confirms that employers should generally:

• Identify a fair selection pool
• Apply objective selection criteria
• Avoid discriminatory factors
• Consult with affected employees

Common fair selection criteria include:

• Skills, qualifications, and experience
• Performance and capability
• Attendance records
• Disciplinary history

What Makes Redundancy Selection Unlawful?

Redundancy selection becomes legally problematic when the process is unfair, biased, or contractually breached.

1. Use of unfair or discriminatory criteria

Selection is unlawful if it is based on:

• Pregnancy or maternity
• Disability-related absence
• Trade union membership
• Age, sex, race, or other protected characteristics
• Part-time or fixed-term status

Even indirect discrimination can make a redundancy dismissal unlawful.

2. Lack of objective scoring or inconsistent application

Tribunals commonly find unfairness where:

• Criteria are vague or subjective
• Managers apply scoring inconsistently
• Evidence is not documented
• Employees are not compared fairly within the same pool

Fair redundancy systems require objective and measurable criteria applied consistently across all affected employees

3. Incorrect selection pool

A redundancy may be challenged where:

• The employer excludes employees who should have been in the pool
• The pool is artificially narrowed to target a specific individual
• Employees with interchangeable roles are not considered together

Case law and guidance confirm that an incorrect selection pool is a common ground for unfair dismissal claims.

4. Failure to consult properly

Employers must consult meaningfully with employees before final decisions are made. Failure to do so can make a redundancy dismissal procedurally unfair.

Consultation should include:

• Explanation of selection criteria
• Opportunity to challenge scoring
• Discussion of alternatives to redundancy
• Consideration of redeployment options

5. Breach of contract (wrongful dismissal element)

Wrongful dismissal focuses on contractual breach, not reasonableness. In redundancy selection, it may arise where:

• The employment contract sets out a redundancy procedure that is not followed
• Selection criteria specified in policy or contract are ignored
• Notice or redundancy terms are not honoured
• The employer fails to follow a contractual disciplinary or appraisal process used in selection scoring

Even if redundancy is genuine, failure to follow agreed contractual procedures can support a wrongful dismissal claim.

Difference Between Wrongful Dismissal and Unfair Dismissal in Redundancy

Issue	Wrongful Dismissal	Unfair Dismissal
Focus	Contract breach	Reasonableness of dismissal
Tribunal test	Was contract followed?	Was employer's decision fair?
Compensation	Notice pay, contractual losses	Loss of earnings, statutory compensation
Redundancy relevance	Breach of redundancy procedure	Fairness of selection process

In redundancy selection cases, both claims may be brought together if appropriate.

Examples of Wrongful Dismissal Linked to Selection

Example 1: Ignoring contractual redundancy process

An employee handbook requires a scored matrix system, but the employer selects employees informally based on manager preference. This may be wrongful dismissal.

Example 2: Failure to apply contractual notice and pay terms

An employee is selected for redundancy but not given the contractual notice period or correct redundancy payment.

Example 3: Breach of agreed selection criteria

A contract requires selection based on performance appraisals, but the employer uses attendance alone or introduces new criteria without agreement.

Legal Risks for Employers

Poor redundancy selection can lead to:

• Unfair dismissal claims (procedural and substantive unfairness)
• Wrongful dismissal claims (contract breach)
• Discrimination claims under the Equality Act 2010
• Protective awards in collective redundancy situations

Even where redundancy is genuine, procedural defects can still result in tribunal liability.

Time Limits for Bringing a Claim

Employment Tribunal claims related to redundancy selection typically must be brought within:

• 3 months minus 1 day from the effective date of termination

This is subject to ACAS Early Conciliation, which pauses limitation periods during settlement discussions.

Wrongful dismissal claims in civil courts may have longer limitation periods (typically up to 6 years), depending on how the claim is brought.

Practical Considerations for Employees

In redundancy selection disputes, key factors often examined include:

• Whether a proper selection pool existed
• Whether objective criteria were used
• Whether scoring was documented and transparent
• Whether consultation took place
• Whether contractual redundancy procedures were followed
• Whether alternative roles were considered

Evidence such as emails, scoring sheets, and consultation notes is often central to tribunal outcomes.

Common Questions

Is redundancy automatically fair if the business is closing?

No. The redundancy reason may be genuine, but selection and process must still be fair and lawful.

Can I challenge being placed in a redundancy selection pool?

Yes, particularly where other employees doing similar work were excluded.

Does poor performance justify redundancy selection?

It can be a valid criterion, but it must be evidenced, consistently applied, and not discriminatory.

Can redundancy selection be challenged after termination?

Yes, through an Employment Tribunal claim if time limits are met.

Key Takeaways

Wrongful dismissal linked to redundancy selection occurs where an employer breaches contractual redundancy procedures or fails to follow agreed selection processes. While redundancy can be a lawful reason for dismissal, the selection method must be objective, fair, and non-discriminatory. Failures in selection pools, consultation, scoring systems, or contractual compliance can result in legal claims for wrongful dismissal, unfair dismissal, or discrimination. Understanding how selection should be conducted is central to assessing whether a redundancy dismissal is legally valid.