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Discrimination at work - redundancy

If your employer wants to make you redundant they must base their decision on objective criteria and make sure they follow a selection procedure which is fair. Sometimes if you’ve been made redundant and you think you’ve been treated unfairly it may be unlawful discrimination under the Equality Act 2010.

Read this page to find out about when you may have been discriminated against if you’re made redundant.

What’s redundancy?

Redundancy is a form of dismissal. It's where you’re dismissed for one of the following reasons:

  • your employer’s need for employees to do work of a particular kind has ended or diminished
  • your workplace closes
  • your employer goes out of business.

Redundancy is a potentially fair reason for dismissing you but sometimes it may unfair dismissal.

It can also be unlawful discrimination. This is the case when:

  • it isn’t a genuine redundancy and redundancy is being used to disguise a discriminatory reason for the dismissal, or
  • it's a genuine redundancy, but the procedure that was followed when dismissing you was discriminatory.

When might it be unlawful discrimination if you're made redundant?

Something will only be unlawful discrimination under the Equality Act if it's because of:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

The Equality Act calls these things protected characteristics.

If you’re made redundant, you may be able to claim unlawful discrimination if your employer:

  • uses the redundancy as a way of disguising discrimination - the real reason for the dismissal was not redundancy but because of a protected characteristic, or
  • uses selection criteria which directly or indirectly discriminate against you because of a protected characteristic.

When is selection criteria discriminatory?

The selection criteria may be directly discriminatory - for example, if an employer decides to make you redundant because you've become disabled. Direct discrimination can never be justified.

Sometimes the criteria or the way employees are scored against the criteria may be indirectly discriminatory. This happens when the criteria are applied to everyone, but the criteria themselves or the way they are scored disadvantage you and other people like you who share your protected characteristic. However, that disadvantage may not be discriminatory if the employer can justify their choice of criteria.

Example

You're Polish and work in a sandwich processing plant. Your employer uses the ability to write good English as one of its selection criteria in a redundancy exercise. This criteria places you and other Polish workers at a particular disadvantage. If the job involves using the written word it may be justifiable to include this in the criteria, but not justifiable if the work involves processing food and packing sandwiches.

Example

You work in a shop where there are full and part-time sales assistants. Your employer has decided that whether you are full or part-time will be one of the selection criteria when deciding who to make redundant. Part-time employees are selected for redundancy. You’re a woman and work part-time and so have been made redundant.

In your workplace, most part-time employees are women and most full-time employees are men. Using this as one of the criteria is potentially indirectly discrimination. This is because women are particularly disadvantaged in comparison with men. However, if the employer can show a tribunal that it was justified to use this as one of the criteria, then it will not be indirect discrimination.

Disability discrimination

If you’re made redundant and your employer uses attendance and absence record as a selection criteria, it may be disability discrimination if your employer takes your disability-related absences into account.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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