EMCC European Monitoring Centre on Change

United Kingdom: Selection of employees for (collective) dismissals

United Kingdom
Phase: Management
Type:
Selection of employees for (collective) dismissals
Last modified: 16 May, 2019
Native name:

Trade Union and Labour Relations (Consolidation) Act 1992

English name:

Trade Union and Labour Relations (Consolidation) Act 1992

Article

Part XI, section 188 (4) (d)

Description

As part of the consultation process about how many employees an employer is proposing to collectively dismiss, section 188 (4) (d) of the Trade Union and Labour Relations (Consolidation) Act 1992 (which is derived from Directive 98/58/EC concerning collective redundancies) states that an employer proposing to dismiss as redundant 20 or more employees at one establishment within 90 days or less, as part of the consultation process must disclose the proposed method of selecting the employees who may be dismissed. 

Before applying any selection criteria, the pool of employees to whom a set of fair criteria are to be applied must be identified. The criteria must include:

  • whether other groups of employees were doing similar work to the identified pool;
  • whether employees’ jobs are interchangeable;
  • whether the redundant employee's inclusion in the pool is consistent with his or her job;
  • having established the pool, whether the pool was agreed with the union (if appropriate).

Selection criteria must be non-discriminatory, objective and verifiable, and as well as being reasonable in themselves, they must be applied in a reasonable manner.

‘Last-in-first-out’ is objective and verifiable but may not address the employer’s business needs and is likely to discriminate on the grounds of age, gender and part time status (younger workers and women, who are more likely to have taken a career break, are likely to have shorter periods of service).

Pregnant women and new mothers may be dismissed or chosen for redundancy only on grounds unconnected with their condition – for example, serious misconduct or departmental closure. A woman selected for redundancy during maternity leave has the right to be offered alternative employment, in preference to other employees, if a suitable vacancy exists.

The proposed selection criteria must be disclosed to employee representatives before consultation begins.

Section 153 of the Trade Union and Labour Relations Act 1992 prohibits selection for redundancy where the reason or principal reason for the dismissal of an employee is based on grounds related to union membership or activities. In this case, the dismissal is regarded as unfair according to Part X of the Employment Rights Act 1996.

Comments

If possible, selection criteria should be agreed with the employee representatives. Whilst the use of 'last-in-first-out' as a selection method was once widespread, the practice is much less common now as it may breach discrimination law. The Equality Act 2010 makes it unlawful to directly or indirectly discriminate against an employee based on the following protected characteristics: age, disability, age, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

Cost covered by
Not applicable
Involved actors other than national government
  • Trade union
  • Works council
Thresholds
20
20
Sources
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