Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for?
Thank you and whilst you have the percentages of foreign nationals at risk or selected for redundancy, is there any evidence that nationality was the reason for selection rather than the other selection criteria used?
Ok thank you. What selection criteria an employer chooses is effectively down to them. No one can tell an employer what to use and if it is challenged in tribunal, it cannot substitute its own vie for that of the employer. So in effect a tribunal has to accept the criteria chosen by the employer and determine if they are reasonable and fair.
As far as selection criteria re concerned, the employer can apply just about anything they want. Of course clearly discriminatory criteria like nationality, age, race, etc will be hard to justify, but in reality it is possible to engineer a redundancy by applying criteria which end up affecting specific employees more negatively than others. It is then about trying to establish the link between this and the employer’s deliberate attempt to try and remove certain employees. Unfortunately that is not always easy. Whilst you may wish to point out that the majority of affected employee are of foreign nationality, you have to agree that it could also be down to coincidence and it is not an automatic guarantee that it is the reason behind the employer’s decision.
Legally, in order to be reasonable, the redundancy selection criteria should, as far as possible, be both objective and capable of independent verification. This means that the criteria should be measurable, rather than just being based on personal opinion.
Selection on purely subjective grounds is likely to be unfair. This is to ensure that an employee is not selected by a manager due to personal animosity, or for an automatically unfair or discriminatory reason. Saying that, there have been a few cases in which subjective selection criteria have been held to be acceptable, although subjective criteria must still be applied in an objective manner.
So I cannot in any way guarantee that the criteria used here will be found to be unfair – only a tribunal can decide that and one judge on one day could have a very different opinion to another on a different day. I would say that for now you need to try and find more evidence which may suggest that nationality may have been the genuine reason behind their procedure, for example any discussions or hints the employer may have had in the past to suggest that they were considering removing people of foreign nationalities.
This is your basic legal position. I have more detailed advice for you in terms of the rights you have to challenge this should the employer still proceed with making you redundant, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Whilst the criteria adopted by the employer are largely left to them, they must still be applied consistently and fairly. So if you have evidence that there has been no consistent application it is possible to challenge them at tribunal. Initially however this needs to be challenged internally – via the consultation meetings, if any are left and by launching a formal appeal once the redundancy decision has been communicated.
If the redundancy is confirmed and the employment I terminated the only option then is an unfair dismissal claim in the employment tribunal.
A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.
If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.
The conciliation procedure and the form to fill in can be found here:
In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Many thanks best of luck