Can my employer do this?

RacHel

I am a long time lurker, but now need the benefit of the advice of others on here if possible.

I have worked for my company for a number of years, my colleague for almost a year, we both do similar jobs which due to the downturn in our industry has led to us both being put at risk of redundancy.

I have been provisionally selected, and can only deduce that my selection is based solely on the application of one criteria relating to absence over the previous 12 months. Is this fair, given that my colleague has not worked here for 12 months?

Thanks

Emmzi

yes, they can set any criteria they like

is your absence disability realted?

RacHel

No I had a chest infection. I would have thought that the absence criteria timescale would have to be reduced due to my colleagues shorter length of service??

SarEl

No it doesn't. What you think of as fair and objective is not what the law means. The employer must set the same criteria for everyone with no distinctions - so "over the last 12 months" is fair and objective, even if you have worked there 20 years and someone else only six months.

But I would say that "deducing" the reason really isn't a good way to approach this. You should be asking in what criteria you scored less and why. You can't challenge this (assuming that is what you want to do) unless you know the answer to those questions.

gwernybwch

SarEl wrote: »

No it doesn't. What you think of as fair and objective is not what the law means. The employer must set the same criteria for everyone with no distinctions - so "over the last 12 months" is fair and objective, even if you have worked there 20 years and someone else only six months.

I might differ with this.
If the criteria is the number of days absence in the last twelve months and the OP has their number of days absence assessed over a 12 month period and the other person in the pool is assessed on the number of days absence over a 6 month period (because they have by default only had 6 months service), then it could be argued that this isn't a fair application of a criteria as it is more likely that a person could accure more absence as their assessment period is longer.
If the assessment was based on a percentage i.e. no. of days absence divided no. of days employed (but still capped within a 12 month period), I would say that that is a fair application of the criteria.

Either way, we are probably just splitting hairs as you rightfully say the OP needs to see all the criteria used and how it was applied before decided whether they have been unfairly selected.

firesidemaid

hi OP.

do you think this is the reason or could there be another one?

is there a big difference between your wages also?

do you think they could/would part with both of you? ie. you get made redundant, and then they sack your colleague for something/anything as they have been working there less than a year?

just trying to get a feel for how good/honest your employers are?

SarEl

gwernybwch wrote: »

I might differ with this.
If the criteria is the number of days absence in the last twelve months and the OP has their number of days absence assessed over a 12 month period and the other person in the pool is assessed on the number of days absence over a 6 month period (because they have by default only had 6 months service), then it could be argued that this isn't a fair application of a criteria as it is more likely that a person could accure more absence as their assessment period is longer.
If the assessment was based on a percentage i.e. no. of days absence divided no. of days employed (but still capped within a 12 month period), I would say that that is a fair application of the criteria. Unfortunately, this is not how it works in law. I cannot fault your logic - but a tribunal will not agree with it. The position in law is as I stated.

Either way, we are probably just splitting hairs as you rightfully say the OP needs to see all the criteria used and how it was applied before decided whether they have been unfairly selected. Agreed. The OP has assumed that this is the cause of the difference - it may not be.

Tribunals operate on the strict definition of commonly applied criteria - this sort of situation is far from uncommon, and provided that the same crietria are applied to everyone they are consdiered to be fair in law. You could, equally, take two people who have both worked for three years. The first one had six months off last year, and nothing before or since. The other has had no time off. But if the employers criteria is 12 months, then in law neither has had time off. It is equally "unafir" - but not in law.