How-to guide: How to establish a fair selection pool during a redundancy process (UK)

Introduction

This how-to-guide will assist in-house counsel, private practice lawyers and human resources professionals working in England, Wales and Scotland (GB) to comply with the legal requirements for drawing up selection pools in a redundancy exercise. This guide does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland Assembly.

This guide covers:

Overview of redundancy
Identifying lawful and defensible selection pools
Redundancy pool construction methods
Consultation on the selection pool
Common pitfalls and legal risks

This guide can be used in conjunction with Checklist: Conducting a redundancy exercise and How-to guides: How to carry out a fair termination of employment and How to comply with legal requirements relating to selection criteria during a redundancy process.

Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.

Section 1 – Overview of redundancy

Redundancy is a potentially fair reason for dismissal under section 98(2)(c) of the Employment Rights Act 1996 (ERA 1996). It covers situations where the employer has a reduced need for employees to carry out work of a particular kind, or where a workplace is closing. Classic examples of redundancy situations include business restructuring or reductions in demand. Not every organisational change will be a redundancy. The starting point is understanding whether the work employees do is genuinely disappearing or reducing.

For an overview of the key stages in a redundancy process, see Checklist: Conducting a redundancy exercise.

1.1 Genuine redundancy situations

Employers should be alert to the distinction between a genuine redundancy and situations dressed up as redundancy. For example, dismissing someone for poor performance under the guise of redundancy risks a successful unfair dismissal claim. Employment tribunals look beyond the label. They assess whether the role itself has ceased or diminished and whether the process followed was fair.

1.2 Fair process

Even when the underlying need for redundancies is clear, employers must ensure they follow a fair process for selecting employees for redundancy. A fair redundancy process means more than just ticking boxes. One key step in the process is that employers must identify an appropriate pool of employees from which to select those at risk. This pool needs to be reasonable in the context of the organisation – not too narrow and not artificially broad. Within that pool, the selection criteria must be objective, transparent and consistently applied.

1.3 Risks of getting it wrong

Legal risk does not arise only from discrimination. Even when no protected characteristics (see Quick view: Protected characteristics under the Equality Act 2010) are involved, a flawed pool or unfair scoring can make a dismissal for redundancy unfair. Tribunals apply the ‘range of reasonable responses’ test, which requires the tribunal judge or panel to assess whether the employer’s decision was something a reasonable employer could have done. If not, the dismissal is likely to be found unfair, leading to a tribunal claim for unfair dismissal.

This guide focuses on an area that can generate risk in a redundancy situation: selection pools. This is an issue that can cause employers to lose tribunal claims, for a range of reasons including making subjective decisions, failing to keep records or overlooking the risks of indirect discrimination.

Section 2 – Identifying lawful and defensible selection pools

2.1 Legal principles on redundancy pool selection

There is no legal requirement to use a particular type of selection pool in a redundancy process. If a redundancy is challenged, an employment tribunal will consider whether the employer acted reasonably during the redundancy process, and that includes how the employer decided who was at risk of redundancy – which employees were included in the selection pool. Tribunals will expect to see a clear, logical approach to identifying the pool, based on the work employees do and how interchangeable their roles are.

All employees that do similar or interchangeable work, even if their job titles are different, should be included in the pool. If several employees carry out broadly the same type of work, they should usually all be included in the pool. This can include employees across different departments or locations if the roles are comparable and the staff could be moved around.

It is not enough for an employer to say the pool ‘felt right’ or ‘made sense at the time’. There must be a clear business reason, supported by evidence. If the pool is too narrow — for example, picking one person out of a larger team — the employer may be at risk unless it can justify that decision. A ‘pool of one’ is not unlawful in itself, but it is scrutinised closely. Tribunals will ask why others were not considered and whether the decision was influenced by bias or ulterior motives.

The question a tribunal will consider, is not whether there was only one correct way to define the pool, but whether the employer’s approach was within the range of reasonable responses. This gives employers a margin of discretion; however, if there were obvious alternatives the employer ignored, that may undermine their case.

Employers should also be consistent. If they use certain criteria for determining a pool in one redundancy round but take a different approach in another, they should be prepared to explain why. Internal inconsistency without justification can damage credibility and lead to a finding of unfairness.

2.2 Identifying which employees should be included in the selection pool

To determine the pool, review organisational charts, job descriptions and patterns of work (although see further 2.3 below). Just because an employee is based in a different location or team this does not mean they should be excluded from the pool. The key is whether the roles are functionally similar.

The pool should include all employees who are carrying out the same or similar work, or whose roles are interchangeable. This does not just mean everyone with the same job title, but employers must also consider the work being done. Two employees may have different titles but do the same tasks. If their work overlaps and they could cover each other’s role, they should normally be in the same pool.

Temporary variations in duties should not automatically affect the pool. For example, if an employee has been on secondment or light duties, it is usually still appropriate to treat them as in their original role unless the change is permanent. The same applies to employees on maternity or sick leave — their absence does not mean they should be excluded.

Employers should challenge any assumption that ‘X is the only one doing this role’ or ‘Y is the obvious candidate for redundancy’. These types of judgements need to be backed up with evidence.

It is also good practice to sense-check the proposed pool against the wider organisation. Employers should ask: who else could realistically do this work? Who has done it in the past? Are there other roles with similar functions?

2.3 Use of job descriptions and organisational charts

Job descriptions and organisational charts can be useful tools when defining a redundancy pool, but they should be used with care. They are a starting point, and employers should avoid relying on them too narrowly or uncritically.

Job descriptions can help show whether roles are similar or distinct. If two employees have almost identical job descriptions, that may support a decision to include them in the same pool. Equally, if someone has a clearly different set of duties, that might support a decision to exclude them. But job descriptions often lag behind reality. Roles evolve over time. People take on additional tasks, work across teams or step into broader responsibilities. A job description written three years ago might no longer reflect what someone actually does day to day.

It is important to test job descriptions against actual duties. This might involve speaking to line managers, reviewing work allocation records or looking at recent performance appraisals. If a job description suggests two roles are different, but in practice the employees carry out the same tasks, they probably belong in the same pool.

Organisational charts can also support the pooling rationale. They show reporting lines, team structures and where employees sit within the wider business. If a whole team is affected by a restructure, the chart may help demonstrate why those employees were grouped together. But again, charts do not tell the whole story. They are static snapshots, and they do not capture the fluid way many businesses operate.

In larger organisations, it is common for staff to work across teams or to report into more than one function. In those cases, an organisational chart may not reflect how work is actually carried out. Just because someone appears in a different part of the chart does not mean their role is materially different. If pooling decisions are based solely on where someone appears on a diagram, they may be challenged.

The key is to use job descriptions and charts to support – not substitute – the real analysis. They can help explain the logic behind the pool, especially to those outside the immediate team. But they need to be backed up by evidence about what people actually do and how roles interact.

In-house counsel and HR should check that job descriptions being used in redundancy decisions are up to date and still accurate. If they are not, they should be supplemented with current information. The same applies to organisational charts – if they are being used to support decisions, they should reflect how the business actually operates, not how it looked on paper historically.

2.4 When a ‘pool of one’ can be lawful

There is no legal rule that says a redundancy pool must contain more than one person. A ‘pool of one’ can be lawful. The key question is whether the decision to limit the pool to one person was reasonable, not whether it was the only option available.

A common example is where an employee holds a genuinely stand-alone role. If there is no overlap with any other employee’s duties, and the need for that role has ceased, it may be reasonable to treat the role as a pool of one. In some organisations stand-alone roles do exist. For example, a single in-house graphic designer in an organisation otherwise reliant on external agencies.

Too often, employers default to a pool of one because it seems easier or because they have already decided who they want to make redundant. However, this approach is high risk. Tribunals will ask whether others were doing similar work and could have been considered. If there is any suggestion that the employee was singled out – especially if there is a history of performance concerns, grievances or protected disclosures – the tribunal may conclude that redundancy was a pretext for the employer’s decision to dismiss the employee for other reasons.

Sometimes the employer has concerns about the employee’s performance, attitude or long-term fit. Rather than go through a disciplinary or capability process, the employer uses redundancy to remove the individual. Tribunals will scrutinise this carefully. If it looks like redundancy was used as a cover for another motive, the dismissal is likely to be found unfair – even if a redundancy situation genuinely existed.

Even where the employer believes the role subject to redundancy risk is unique, they must check whether there are comparable roles elsewhere in the organisation. There should be robust challenge of any assumption that a role is unique and evidence should be assessed, including job descriptions, reporting lines and day-to-day duties.

Documentation is important for employers to be able to demonstrate that they turned their mind to the relevant issues. If a manager proposes a pool of one, they should explain why. That explanation should be reviewed internally and recorded – ideally in a consultation paper or by HR. If the decision is later challenged, contemporaneous records will carry more weight than reconstructed reasoning.

Section 3 – Redundancy pool construction methods

The approach to formulating a redundancy pool will depend on the size and structure of the organisation, the type of roles affected and how work is allocated. It is key that the method used is reasonable and based on the reality of how the business operates.

When deciding which roles to include in the selection pool, employers often default to grouping by team, location or job title. These are all valid starting points, but each has its risks. What matters is whether the choice reflects the reality of the work being done – and whether the employer can explain the pool if challenged.

Employers should be alert to the assumptions behind each method. A pool based purely on organisational charts or reporting lines may miss important overlaps. Likewise, excluding someone from a location-based pool just because they happen to be based elsewhere can be risky if the work is the same.

Ultimately, the method chosen must be consistent with business needs and backed by evidence. It is good practice to be able to identify and document the rationale at the time – not later in litigation.

3.1 Team-based

A team-based pool is the most common. If a whole team is affected – say, a restructure means reducing the number of marketing assistants – it usually makes sense to pool everyone in that team. The logic is clear: all affected employees do similar work, and the employer needs to decide who stays. This approach tends to be easier to explain and manage, particularly where duties and responsibilities are shared.

But it is important not to apply team boundaries too rigidly. If staff in other teams are doing similar work, they may need to be included too. It is not enough that the employees are in a different department, if their roles are materially the same. Employers should ask whether roles are truly distinct or whether the split is artificial.

3.2 Location-based

Location-based pooling can also be appropriate, particularly where a specific site is closing or downsizing. If the business operates from multiple locations, it may be reasonable to limit the pool to the affected site – but only if staff at that site are genuinely ringfenced. If employees move between sites or work remotely, or if the employer has previously treated roles across locations as interchangeable, a location-based pool may not hold up. Tribunals will look at whether the separation between sites is real or nominal.

3.3 Skills-based

A skills-based pool takes a broader view. It focuses on what people do, rather than where they sit or which team they are in. This approach is often more appropriate where similar functions are performed across different teams or departments. For example, if administrative duties are spread across finance, HR and operations, and the employer is reducing administrative headcount overall, it may be reasonable to pool all administrators, not just those in one team.

Skills-based pooling is useful where job titles do not reflect the work being done. It also helps where the employer wants to retain core skills, regardless of current structure. But it can be harder to manage in practice. It may require more detailed role mapping and careful explanation to affected staff.

3.4 Documenting pool decisions

The decision on who goes into a redundancy pool is often one of the most contested parts of a redundancy process. If challenged, the tribunal will want to know not just what decision was made, but how it was made. Documenting the rationale is therefore essential. It provides a clear audit trail showing that the employer considered the right issues and acted reasonably.

When a redundancy pool is challenged, the first thing a tribunal will ask is: how did the employer decide who was included in the pool? If the answer is not clear, or if there’s no record of the decision, the employer is already in difficulty.

Employers should create an audit trail setting out a clear, written record of how the pool was decided. This does not have to be a long document, but it should explain:

which roles are at risk;
which roles were considered for the pool;
which roles were included or excluded and why; and
who made the decisions.

The explanation should link back to the business rationale. If the employer is removing one finance administrator role, for example, they need to explain whether all finance administrators were pooled, and if not, why not. It might be that some perform very different duties, or that their roles are tied to specialist functions. If so, that should be recorded clearly at the time – not explained later when the decision is challenged.

This record might be prepared by HR, a line manager or the in-house legal team. It should be dated, stored with the redundancy file and shared internally with those responsible for running the redundancy process. If there is a later grievance or tribunal claim, this document will help show that the employer acted reasonably.

It is helpful to log any other options that were considered but rejected. For example, ‘We considered including the customer service team but excluded them because their duties are not interchangeable with the roles at risk’. Even if that judgement is later questioned, showing that it was considered and logged will carry weight.

Employers sometimes rely too heavily on conversations and informal agreement between managers. If there is no record of those discussions, they are difficult to rely on at a later point to defend a tribunal claim. Memories fade, and key people may have left the business by the time a tribunal claim is heard.

It is also important to avoid copying old justifications from previous redundancy exercises without checking they still apply. Pooling decisions need to reflect current job duties and team structures. If the business has changed, an old pooling rationale may no longer make sense.

HR and in-house counsel should review the audit trail as part of their oversight role. If the documentation does not clearly explain how the pool was decided, now is the time to fix it – not later in cross-examination. The test is simple: would someone unfamiliar with the business understand and accept the logic?

Section 4 – Consultation on the selection pool

Consultation is a central part of a fair redundancy process. While most of the focus tends to be on consultation around selection criteria or alternative roles, discussing the proposed selection pool can also be important – especially where the choice of pool is non-obvious, limited or likely to be challenged. This section sets out the legal position on whether consultation on the pool is required, and explains why it is often good practice, even if not strictly necessary.

4.1 Is consultation on the selection pool legally required?

Subject to the below information about collective redundancy consultation, there is no statutory obligation to consult specifically on how the selection pool has been drawn. The law requires consultation on the redundancy situation generally, including ways to avoid redundancies and how selection will work – but it does not state that employers must ask employees whether they agree with the proposed pool.

That said, the selection pool is part of the overall fairness of the dismissal. If an employee is dismissed as redundant and later challenges the process, the tribunal will look at how the pool was chosen and whether the decision to include that employee was reasonable. If the employee was not given a chance to comment on the pool – particularly if it was narrow or not obviously justified – that may count against the employer.

4.1.1 Collective redundancy consultation

In collective redundancy cases, where 20 or more dismissals are proposed within 90 days, consultation must cover the method of selection, which by implication includes the pool. Employers must consult appropriate representatives (such as trade unions or elected employee representatives) and provide specified information in writing. This includes the number and descriptions of employees the employer proposes to dismiss, which naturally brings in the scope of the pool.

For further information about collective redundancy, see Quick view: Collective redundancy consultation.

4.1.2 Individual redundancy consultation

In individual redundancy consultations, the legal requirement is to consult meaningfully before a final decision is made. While the law does not mandate consultation on the pool itself, it does require the employer to act reasonably. That means, in practice, employees should usually be given enough information to understand why they have been included in the pool and should be able to challenge it if they think the pool is wrong. This is heightened in a case where a ‘pool of one’ was adopted

4.2 Best practice in selection pool consultation

Even where it is not required by law, consulting on the pool is often the sensible and safer option. It can help identify problems early, strengthen employee confidence in the process, and improve the employer’s position if challenged.

At a practical level, consultation on the pool usually forms part of the first or second consultation meeting. It does not need to be a lengthy or defensive discussion, but it should include:

a clear explanation of which roles have been identified as at risk;
a description of how the pool was constructed; and
an opportunity for the employee to comment on whether the pool is appropriate.

This is not a negotiation and the employer is entitled to make the final decision. But giving the employee a chance to challenge their inclusion can help flush out issues early. For example, the employee may argue that others should also be in the pool, or that their own duties are distinct. These points may not change the outcome, but they can inform the process and if considered by the employer reduce the risk of a successful claim.

It is particularly helpful for employers to consult on the pool in situations where:

the pool consists of only one person;
there are several overlapping or hybrid roles in the business;
one or more employees included in the pool have recently been transferred or promoted into the role; or
there is potential for bias, resentment or ongoing disputes.

Where a trade union or employee representatives are involved, they should be consulted on the structure of the pool. They may have insights into how roles overlap or differ in practice. They can also act as a sounding board, which adds weight to the employer’s position if the pool is later challenged.

Documentation of this consultation is important. Meeting notes should record what was said about the pool, what feedback was received and how the employer responded. Even if the employee disagrees with the pool, showing that the issue was properly raised and considered helps demonstrate fairness.

In-house counsel should encourage HR teams to think in advance about whether the pool is likely to be challenged and, if so, how that risk is being managed. It may be appropriate to brief line managers or include a section in the consultation script addressing the rationale for the pool.

Finally, employers should be consistent. If they consult on the pool in one redundancy exercise but not in another, they need to be able to explain the difference. Inconsistent practices can make it harder to show the process was fair overall.

Section 5 – Common pitfalls and legal risks

Even when a redundancy is genuinely needed, employers often make avoidable mistakes when defining the pool. These errors do not always stem from bad faith – many are the result of rushed decisions, inconsistent processes or assumptions that go unchallenged.

This section highlights the most common problems with selection pools that lead to legal risk. Some relate to how decisions are made, others to how they are recorded or explained. What they have in common is that each can undermine an otherwise lawful process – and turn a fair dismissal into an unfair one.

Clear documentation and a willingness to challenge assumptions are usually enough to avoid most of these traps.

Common mistakes made by employers when dealing with selection pools include:

The employer fails to consider whether other employees are doing similar work to those in the selection pool and consequently excludes certain employees without explanation.
The employer defaults to a ‘pool of one’. The decision has not been thought through — or worse, the employee seems to have been picked because of historic issues or because they are ‘easier’ to dismiss.
The rationale for the selection pool is clear in reality but is not written down. The employer does not have documentary evidence to explain what roles are affected, why and how the pool was drawn.

How-to guide: How to establish a fair selection pool during a redundancy process (UK)

Introduction

Section 1 – Overview of redundancy

1.1 Genuine redundancy situations

1.2 Fair process

1.3 Risks of getting it wrong

Section 2 – Identifying lawful and defensible selection pools

2.1 Legal principles on redundancy pool selection

2.2 Identifying which employees should be included in the selection pool

2.3 Use of job descriptions and organisational charts

2.4 When a ‘pool of one’ can be lawful

Section 3 – Redundancy pool construction methods

3.1 Team-based

3.2 Location-based

3.3 Skills-based

3.4 Documenting pool decisions

Section 4 – Consultation on the selection pool

4.1 Is consultation on the selection pool legally required?

4.1.1 Collective redundancy consultation

4.1.2 Individual redundancy consultation

4.2 Best practice in selection pool consultation

Section 5 – Common pitfalls and legal risks

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United Kingdom

Employment & Labor