Sometimes an employee can be dismissed by reason given of Redundancy by an employer, but they were provided with No advanced notice of the redundancy, no consultation process took place, no selection process took place, and the employee is left feeling bereft thinking why did they pick me ?.

Also, an employee can feel that an unfair selection process arose that lead to the redundancy.

If an employee is going to be made redundant, an employer should discuss alternatives to redundancy with the employee, should engage with the employee in a consultative process prior to the date of dismissal regarding the financial situation the employer may be in and the alternatives to dismissal. Many employers don’t want to do this, as they don’t want to discuss such matters with an employee.

Such a situation then leads to what people describe as a redundancy on the spot, as in the employer comes to them at work and tells them they are being made redundant with immediate effect. This is imprudent on behalf of the employer and leaves an employee feeling aghast and aggrieved.

If an employee is selected for redundancy unfairly, with no selection process or a lacklustre unfair selection process, there may be sufficient grounds to find an unfair dismissal arose contrary to the law.

Employees are entitled to fair procedures on how selection in redundancy matters are carried out.

An employer must be able to show the appropriate pool of workers they considered for redundancy. The pool of selection should be reasonably well defined and should apply to all employees with similar work positions.

There should be meetings with employees made redundant, prior to the date of the dismissal and an employer should maintain the detail of such meetings.

There should be a Process.

An employer may consider there is financial evidence regarding the necessity to effect redundancies, but when it comes to selections for redundancies, they must be able to justify why the employee in question was made redundant ie why that employee was selected for redundancy.

The employer must have evidence that the selection was based on an unbiased objective and transparent matrix of skills and competencies.

In essence the employer must have concrete evidence they approached the redundancies from an Objective perspective.

Redundancy relates to the Job that must go – not the man/woman employee.

Employers can explore the option of Voluntary Redundancies amongst a wider pool of workers, can explore part-time work, or lay-offs as an alternative option to redundancy.

In essence an Employer should engage meaningfully with an employee prior to the dismissal with discussions, and alternative options, but commonly this does not happen, and as a result claims for unfair dismissal arise.

Fair selection in redundancy matters is an issue that keeps coming up and employees evidently understand fairness, but the following may assist an employee to see how fairness should be approached in a redundancy selection process at work. If an unfair selection for redundancy, the employee may have the option of legal proceedings if they so wish.

If an unfair selection arose and the employee was dismissed, the employee may be entitled to active their rights under the unfair dismissals legislation.

There may not be a union where you work, but the important issue to assess is whether a collaborative, fair and transparent approach was taken by an employer to a redundancy selection process.

In case W. V C.A. 1982 when the issue of fair selection was being considered, the following principles were noted governing how reasonable employers should act:  

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

If any of the following arise, an employee may contend an unfair selection process took place:

• There was no agreement on the selection method chosen;
• No consultation process took place regarding the selection process;
• No interviews took place regarding the selection process;
• No input was asked for or required from the employee regarding the selection process.

Genuine Consultation Process

In case UD/993/2009 regarding redundancy, the tribunal stated :

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

Employees should be afforded with fair procedures in the consultation process and alternatives to dismissal should be explored by the employer.

What were the redundancy procedures adopted ? will be examined in any case. Was an appeals mechanism afforded to the employee ? for example.

All criteria in a selection process should be transparent, fair and based on an objective assessment and should not be personal to the employee made redundant.

Burden of Proof in Unfair Selection for Redundancy Cases

In dismissal cases the burden is firmly on the employer to demonstrate that the dismissal was for a lawful reason.

In a 2011 case IEHC 279 it was stated by the Judge that:

“It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be obtained from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.