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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70448
Experience:  Qualified Employment Solicitor
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In a redundancy process where selection criteria has been

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In a redundancy process where selection criteria has been agreed by employee reps, should the business disclose the weighting? Also if the role has a strong management role, could it be argued for it to be fair it should be one of the key criteria?
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: With HR and 2 managers in the business. Criteria agreed, but weighting not discussed.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Employees, no union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: just that for now, thank you

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

How long have you worked there for? Please note this is not always an instant service so I may not be able to reply immediately. Rest assured that I am dealing with your query and will get back to you the same day. Thanks

Customer: replied 19 days ago.
3 years and 3 months
Customer: replied 19 days ago.
Thanks Ben.

Many thanks for your patience. There is no legal requirement for the employer to disclose the criteria weighting, as long as it has been agreed with the union. For example, the union can negotiate these details with the employer and come to an agreement, which will bind the workforce, but they won’t necessarily have to disclose the specific details and can just state that it is fair and they would not have agreed it otherwise. Still, most unions will be transparent with their members and you should push for that too.

As to the management aspect of the role it does not automatically mean that if that is not part of the selection criteria that it would be unfair. Of course, it is something you can argue for but again, it will not be a legal requirement for it to be included.

Does this answer your query?

Customer: replied 19 days ago.
Ben, this is great, thank you. I was an employee rep. there were no unions involved. The weighting was not mentioned or discussed with the reps by HR and the senior management during the collective consultation period (which included negotiations of the assessment criteria). Under these circumstances I would assume that the business is obliged to disclose openly to the reps their assessment criteria including the weighting. But my question for you is: Is there a Legal requirement on the business to disclose this for fairness and transparency?

No direct legal obligation as such, in a sense that no law states ‘scoring criteria and/or weightings must be disclosed’. However, if that removes the transparency in the selection process and there are also concerns about how it has been applied, it can potentially make for an unfair redundancy process, which can be challenged. But it is not a case of arguing that they have breached any specific legal obligations, rather than the overall process has likely been unfair based on how it was handled.

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 18 days ago.
I was in a pool of 2 people and have been made at risk and going into individual consultation, with the other candidate made provisionally safe. If I am challenging my scoring as I don't think the criteria was fair. Do I have an opportunity to reverse their decision? They have advertised all vacant roles. Am I allowed to apply for the vacant role that my selection pool was allocated to? Is it possible to be offered a position over the "provisionally safe" candidate and for them to then be made at risk? If my application is strong, but they don't revise the scoring criteria?

If you are successful in challenging the savouring and that changes your scores in a way where you score better than the other individual, you could indeed potentially overturn their decision. In terms of applying for other roles, your employer has a duty to offer you whatever suitable alternative employment exists at the time, with the view of avoiding having to make you redundant. That does not guarantee you any specific job and the right is only to be offered the opportunity to apply for it, rather than a right to be automatically slotted into any vacancies. So what you have proposed is potentially possible unless the employer does not see this as a vacancy because it has already been allocated to the other person by default, because they were the one avoiding redundancy

Customer: replied 16 days ago.
Thanks Ben, you've been a great help. I have another question. The original presentation shown by the business to inform everyone about going into consultation had me highlighted as at risk, but didn't have the other person in the pool highlighted as at risk. I contacted HR and they confirmed that he was at risk, but at no point did the business reach out to say there had been an error until I pointed this out. The other person has been made provisionally safe, so would you say there is potentially a case there if I am made redundant?

Yes, this is all relevant evidence which you can use to build a case. Nothing automatically guarantees this was an unfair dismissal, but altogether you can paint a picture of how the employer approached this process and that there are some subtle and other, not so subtle, factors which point at this being potentially unfair.

Customer: replied 15 days ago.
Within the weighting, if the role is for a senior manager and the overall weighting is only 10% for management. Could this be seen as unfair? Or is it the businesses prerogative to weight it how they wish? I am considering going to appeal.

You can challenge, in a sense that you could still raise your concerns about it, it but not on any specific legal grounds to be honest. This is not unlawful in any way – in the end, it is up to the employer to decide what criteria to use and what weighting to attribute to the individual elements of the scoring system.