Under S.6 of the Unfair Dismissals Act, it requires a case officer in dismissal cases under the act to assess the conduct of the employer.

If selection criteria used is personal to the employee, the case officer may view the employers conduct in terms of the selection process as unreasonable, an unfair dismissal arose, and damages should be awarded.   

An employee is only dismissed by reason of redundancy if the dismissal is connected with one of the following facts:

a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

 (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish, or

 (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

 (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of going other work for which the employee is not sufficiently qualified or trained.

The above 5 situations are the only means by which a genuine redundancy can arise.

The burden of proof in dismissal cases is on the employer to demonstrate that the dismissal was fully redundancy connected and the employer must justify the selection process whereby the employee was selected for redundancy.

Selection criteria for redundancy should not be based on a subjective assessment of the employee, and if this arises, it is indicative of an unfair selection procedure.

An example could be the employee’s disciplinary record.

In case IRLR 225 EAT it was stated :

‘’the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

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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