Saying and doing are evidently different things and what can arise is an employer states in writing to the employee that they will enter a period of consultation with the employee so as to ensure a fair selection redundancy process occurs, and that the alternatives to redundancy will be assessed.

The employer then asks the employee to attend a consultation meeting and presents the employee with selection criteria which is completed and scored.

This means the employee did not know about the selection criteria prior to this meeting, did not have an opportunity to influence the criteria used and the marking is already scored.

In case UD1259/2012 it was stated:

“In particular the Tribunal notes that on 17 May 2012 the complainant was requested to attend a meeting where the gravity of the company’s financial position was outlined. The company then informed the complainant that his position along with two other employees was to be made redundant and in so doing produced a matrix that was adopted by the company to effect the redundancies. The complainant had no previous knowledge of the content of the matrix, its significance or its implications for his continuing employment. He was given no opportunity to examine, query or object to the matrix”.

In B. & O. -v-I. P. C. it was stated:

“The onus of proof is on the employer to establish that he acted fairly in the selection of an employee for redundancy”.

“Where selection for redundancy involves consideration of employee’s contribution and versatility to the respondent those in the group likely to be dismissed should be made aware that such assessment was being made and they should be given an opportunity to give their views which should be considered. To be considered fair the assessment should have the characteristics of an enquiry.”

If no consultation process takes place, or if the employee is presented with the selection criteria scored at the first discussion meeting about the redundancy, it can indicate the outcome was predetermined and no consultations process was going to take place.

Redundancy selection criteria should be objectively based, fair, transparent and indicate a fair selection procedure was applied.

Subjectively based criteria should not be adopted by the employer, as redundancy is impersonal to the employee, and selection criteria mainly subjective in nature can indicate unfairness.

The following is a simple example of subjective criteria:

• Disciplinary Record, Score ?.
• Performance, Score ?.
• Attendance, Score ?.
• Attitude, Score ?.
• Knowledge, Score ?.
• Qualifications, Score ?.

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 sought from a solicitor prior to relying on anything in this article.

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