Whatever options or alternatives the employer assessed should be documented and maintained by the employer.

The employee during the consultative process should be asked for their input into the assessment of alternative options.

Selection should involve a fair, transparent process that applied objective selection criteria.

In case UD206/2011 it was stated :

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy… Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”

The burden of proof is on the employer in dismissal cases to show fairness was applied in the selection process and to justify it by objective standards.

The employer is duty bound to consider alternative work for the employee within the organisation, or within another business or business location of the employer.  

In case UDD1726 the court was presented with no information to demonstrate the employer carried out a thorough exercise to consider alternative options.

An employer needs to furnish to a case officer proof that an alternative options exercise was undertaken by them, or the case officer may conclude the dismissal was unfair and damages should be awarded.

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

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