Objective v Subjective Criteria
Objective means relying on hard facts that are easy to measure. Common objective criteria include:
Subjective means impressions or judgments that may vary from one manager to another. Subjective criteria are often more vague and may include qualities such as:
These subjective criteria are more difficult to measure.
However, in reality, employers do not always assess an employee against objective criteria and there is always room for personal judgment and opinion.
There is no obligation on an employer to use objective criteria. However, employers do have to use reasonable criteria and score people reasonably. This may be easier for an employer to prove if they have applied objective selection criteria.
In simple terms, the matrix method of scoring means scoring the employees against each of the chosen criteria and adding up the scores at the end.
Some employers use a very simple matrix of, perhaps, only 3 criteria. A simple matrix is easy to understand, both for managers doing the scoring and employees at risk of redundancy.
Other employers use a much more complex matrix. Although this may be more difficult to understand, having more variables can help to ensure an employer selects the best employees to retain.
Having carried out the scoring exercise, an employer can then make a reasonable decision as to whom should be made redundant. Although an employee is entitled to see the scores you have been given, your employer does not have to show you the scores of your colleagues.
Last-In, First-Out used to be the most common criterion for selecting staff for redundancy. This method has the potential to be unlawful because the last in are generally the youngest, which means an employee may be able to bring an age discrimination claim.
These days, it’s probably fair for employers to use length of service as a ‘tie breaker’ if employees are equal on other criteria. However, it must not be used as the sole or dominant factor.
Performance in the job is a perfectly reasonably criterion to use when selecting employees for redundancy.
However, the employer does need to make sure they have clear performance data, such as sales figures or productivity targets. Otherwise, it will be difficult for an employer to justify their decision.
Absence records can be used as redundancy selection criteria, provided that the employer does not take account of absences resulting from:
Employers can include sickness absence but may need to make adjustments for employees who suffer from a disability.
Absence should be measured over a long period, ideally between one and two years.
Employers may use the following criteria:
Disciplinary record
It is fine for an employer to take into account an employee’s disciplinary record. However, they should not take expired warnings into account.
Part time workers
An employer should not usually take into account whether an employee is part time.
This is likely to be discrimination against part-time workers, which is in breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Automatically Unfair Reasons
Some criteria are automatically unfair and cannot be justified. This includes selecting an employee because they:
Vaishali Thakerar, Director Employment, Lawson West Solicitors, Leicester comments:
“If an employer doesn’t apply fair selection criteria, this may be grounds for the employee to claim Unfair Dismissal. Alternatively, if an employer chooses fair criteria but scores an employee irrationally, this may also give rise to a legal claim.”
If you need legal advice about how to select and make fair redundancies in your workplace, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively complete the free Contact Us form and we will get in touch as soon as possible.
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