Q. An ex-employee has alleged racial discrimination over her redundancy. I’m convinced there has been none, but she is trying to take me to an Employment Tribunal over the issue. How can I deal with it or prevent it from happening again?
 
Derek Kemp of Liquid HR writes:

A crucial requirement is to demonstrate there has been a genuine redundancy, and that selection of the employee(s) concerned is fair and not discriminatory. In identifying a genuine redundancy, its statutory definition must be considered. This includes where the business need for employees to carry out work of a particular kind has ceased or reduced, or is expected to end or decrease.

When you decide you no longer need a specific post, held by only one person in the whole business, it’s relatively straightforward to conclude the position is redundant – regardless of the employee’s individual skills or attributes. However, many redundancy situations result from a decision to reduce the number of a particular type of position – for example, only three sales people are needed and not the five currently employed.

Where this situation arises and you need to choose between employees, it’s critical that a fair process is applied, and clear, nondiscriminatory selection criteria are used. In order to stand against any subsequent claim at an Employment Tribunal, the selection criteria used must be objective, and verified by reference to bone fide records, such as attendance reports, appraisals and length of service.

As part of the consultation process, the selection criteria should be communicated to those concerned and, of course, applied in a consistent manner. As a general rule, the more skilled the positions from which a selection has to be made, the more employers use skill and experience as deciding factors. For unskilled jobs, last in, first out is the more common selection criteria.

Whether or not an ex-employee who alleges discrimination has reasonable grounds to take you to an Employment Tribunal will depend upon how the redundancy process was managed. If they have actually raised the matter with the Tribunal, then clearly you will need to abide by the procedure and respond officially. At the same time, if you feel your process was fair, you might be helped by writing to them, reiterating the salient details of what took place, pointing out expressly the reasons why the redundancy was genuine and how the selection procedure met the requirements to be fair and not discriminatory.

It may be that, helped by Acas, you will be able to resolve the matter, which may amount to no more than a misunderstanding, before the case gets to Tribunal. If it does go to an Employment Tribunal, this is the sort of evidence you will be required to demonstrate.