Can Subjective Criteria Be Used in a Redundancy Selection Process?

In Mitchells of Lancaster (Brewers) Ltd v Tattersall (UKEAT/0605/11/SM), the Employment Appeal Tribunal (EAT) indicated that subjective redundancy selection criteria can be used by small employers without necessarily rendering a dismissal unfair.

The Claimant was employed as one of five senior managers in a small company.  He was made redundant largely because his role did not generate revenue and therefore, if cut, would have the least detrimental impact on the business.  The Claimant claimed unfair dismissal, and this was upheld by both the Employment Tribunal and EAT.  However, the EAT disagreed with the Tribunal's view that the criteria used were ‘unacceptable' because they were based solely on the subjective views of the directors.  The EAT said that just because the criteria were matters of judgment did not mean that they could not be assessed in a dispassionate or objective way.  The same could be said for most selection criteria other than the most straightforward ones such as length of service or absence record. 

This is helpful to smaller employers as it confirms that subjective criteria can be used as part of a fair redundancy exercise.  However, it is important to ensure that other, more objective, criteria are also used and that all employees are assessed in a fair way and as part of a thorough consultation process.