Who Is Protected From Discriminatory Redundancy Selection?

Redundancy is a lawful form of dismissal where an employer reduces or closes a workforce because a job or type of work is no longer required. However, the process of selecting employees for redundancy is strictly regulated in England and Wales. Employers must ensure that selection is based on fair, objective criteria and does not unlawfully discriminate against employees.

Discriminatory redundancy selection occurs where an employee is chosen for redundancy because of a protected characteristic or where neutral criteria place certain groups at a disadvantage without justification. Such conduct can lead to claims in an employment tribunal under the Equality Act 2010, alongside claims for unfair dismissal under the Employment Rights Act 1996.

Legal framework governing redundancy protection

The main legal protections arise from:

• Equality Act 2010
• Employment Rights Act 1996
• ACAS guidance on redundancy procedures

Under this framework, redundancy selection must not be influenced by protected characteristics, must be based on objective criteria, and must be applied consistently across the workforce.

Discrimination can be:

• Direct discrimination: selecting someone because of a protected characteristic
• Indirect discrimination: applying a rule that disadvantages a protected group without objective justification
• Victimisation: selecting someone because they raised discrimination complaints or legal rights
• Automatically unfair dismissal: dismissal linked to protected employment activities (for example whistleblowing or trade union activity)

Protected characteristics under the Equality Act 2010

Employees are protected from discriminatory redundancy selection if the decision is influenced by any of the following characteristics:

Age

Protection applies to all age groups. Selection criteria that disproportionately disadvantage younger or older workers must be objectively justified. For example, using length of service alone may indirectly disadvantage younger employees.

Disability

Disabled employees are protected from selection based on disability-related absence or performance impacts. Employers are also required to make reasonable adjustments during the redundancy process, including adjustments to scoring methods or consultation arrangements.

Sex

Selection cannot be based on gender. This includes both direct bias and indirect practices that disproportionately affect one sex, such as attendance criteria that disadvantage those with childcare responsibilities, where not justified.

Pregnancy and maternity

It is unlawful to select an employee for redundancy due to pregnancy, pregnancy-related illness, maternity leave, or related absence. Statutory protections also extend to priority consideration for suitable alternative employment during maternity leave.

Gender reassignment

Employees undergoing or who have undergone gender reassignment are protected from any redundancy decision influenced by their status or associated treatment at work.

Race

Race includes colour, nationality, and ethnic or national origins. Selection criteria or workplace practices that disadvantage particular ethnic groups may amount to unlawful discrimination.

Religion or belief

Employees are protected from selection influenced by religious belief or lack of belief. This includes indirect discrimination arising from scheduling or attendance expectations.

Sexual orientation

It is unlawful to select an employee because of sexual orientation, or due to assumptions linked to it.

Marriage and civil partnership

Employees must not be selected due to marital status or treatment linked to being married or in a civil partnership.

Additional statutory protections beyond Equality Act characteristics

Certain forms of redundancy selection are automatically unlawful regardless of protected characteristics under discrimination law.

Trade union membership or activity

Selecting an employee because they are a member of a trade union or have taken part in lawful union activities is automatically unfair.

Whistleblowing

Employees who make protected disclosures about wrongdoing are protected from selection linked to that disclosure.

Health and safety activities

Employees raising legitimate health and safety concerns or exercising related rights are protected from retaliation through redundancy selection.

Family-related rights

Selection linked to exercising rights such as:

• maternity leave
• paternity leave
• adoption leave
• shared parental leave
• parental bereavement leave

may result in automatic unfair dismissal.

Part-time or fixed-term status

It is unlawful to treat employees less favourably in redundancy selection because they work part-time or on fixed-term contracts without objective justification.

How discriminatory redundancy selection typically arises

Discrimination in redundancy rarely appears explicitly. It usually arises through the application of seemingly neutral processes such as:

• attendance scoring that includes protected leave (pregnancy or disability-related absence)
• performance assessments influenced by bias or inconsistent appraisal records
• selection pools defined in a way that isolates specific individuals or groups
• subjective criteria such as “attitude” or “cultural fit”
• failure to apply reasonable adjustments during scoring or consultation

Even where there is no intent to discriminate, liability can still arise if the effect of the process disadvantages a protected group and cannot be objectively justified.

Who can bring a claim?

Protection applies to employees in England and Wales who are selected for redundancy in a way that is discriminatory or automatically unfair. Key points include:

• No minimum length of service is required for discrimination claims under the Equality Act 2010
• Unfair dismissal claims generally require two years' service, but exceptions apply for automatically unfair reasons
• Claims are brought in the employment tribunal
• Compensation may include injury to feelings (for discrimination) and financial loss (for unfair dismissal)

Time limits for bringing claims

Strict deadlines apply:

• Most employment tribunal claims must be brought within 3 months less one day of the effective date of termination
• Early conciliation through ACAS is required before submitting a claim
• Time limits can be extended in limited circumstances, but this is not automatic

Employer obligations during redundancy selection

Employers must ensure:

• objective and measurable selection criteria
• consistent application of scoring systems
• consultation with affected employees
• consideration of alternative employment
• exclusion or adjustment of protected absences where required
• documentation of decision-making processes

Failure to follow these steps increases the risk of legal challenge.

Practical steps if discriminatory selection is suspected

Employees may consider:

• requesting written selection criteria and scoring records
• asking for reasons for selection in writing
• raising a grievance internally
• engaging ACAS early conciliation
• seeking legal advice on tribunal claims and evidence

Supporting evidence often includes appraisal records, emails, comparator employees, and consultation documents.

Common questions

Can redundancy ever be fair if it affects protected groups?

Yes. Indirect discrimination can be lawful if the employer can show it is a proportionate means of achieving a legitimate aim.

Is redundancy always unfair if I am in a protected group?

No. Protection is against discrimination, not against redundancy itself.

Can employers use performance as a criterion?

Yes, but it must be based on objective evidence and applied consistently.

What if my role still exists after redundancy?

This may indicate the redundancy is not genuine and could support an unfair dismissal claim.

Key Takeaways

Employees are protected from discriminatory redundancy selection under the Equality Act 2010 and wider employment law protections. Employers must not base redundancy decisions on protected characteristics or retaliatory reasons, and must apply objective, consistent criteria. Protection extends across all nine protected characteristics, as well as additional safeguards for trade union activity, whistleblowing, and family-related rights. Where discrimination occurs, employees may bring claims in the employment tribunal within strict time limits.