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Can You Select for Redundancy Using Subjective Criteria?

Employers making (say) two out of a pool of five marketing executives redundant, should use fair selection criteria to select staff from that pool. Often employers will use a score card approach based on factors such as length of service, sales targets, and less measurable criteria such as ‘knowledge of the product’ and ‘flexibility’. However employees often claim that such criteria are too subjective and therefore unfair.

In the recent case of Mitchells of Lancaster (Brewers) Ltd v Tattersall 2012 in the EAT, Mr Tattersall was one of five members of the senior management team to be selected for redundancy based on the subjective question of which role in that team could be lost with the least effect on the business.

The Employment Appeal Tribunal held that using subjective criteria was reasonable, as long as they are assessed in a ‘dispassionate or objective way’. The EAT went on to say it was not necessary to use criteria that had to be scored or assessed or to turn selection procedures into ‘box-ticking exercises’.

Although useful to employers, this decision should not be treated as a green light to select staff for redundancy willy-nilly using subjective criteria. Whenever possible it is still better to use measurable criteria such as sales performance. When subjective criteria such as ‘flexibility’ are used, employers should make sure they have reasonable grounds for their subjective assessment.

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