Employee Input and Consultation Requirements

An employee should be asked for their input into the selection criteria and process. They should be afforded with an opportunity to provide submissions regarding the selection criteria. An interview with the employee should take place to discuss the selection criteria being considered.

Any selection criteria based on an employee’s attitude, disciplinary record, attendance is inappropriate and not based on an objective assessment. Any decision of the employer regarding the selection of a targeted employee, should be subject to an appeals mechanism for the employee.

The onus of proof in redundancy selection matters is on the employer to show they acted fairly regarding the employee made redundant.

The Problem with Predetermined Outcomes

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”.

Legal Requirements for Fair Selection

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.”

Reasonableness of the Employer

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.

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.”

Dismissal by Redundancy – Legal Framework

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.

Redundancy is Impersonal

S.7 (2) of the primary Act, as amended, states:

An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned.

An important concept to remember with redundancy is that it concerns the job itself that is no longer feasible. It does not relate to the man/woman employee and subjective concerns the employer may have in relation to them, for example, such as a performance issue is not a genuine reason for redundancy.

Performance vs. Redundancy

What happens if an employer cites the decision to dismiss was due to a redundancy situation when the employee is of the view they were dismissed because of their performance instead?

If an employee was dismissed and the decision to dismiss was based on the employees performance with the employer and the employee was furnished with statutory redundancy from the employer, it is likely the employee will contend a genuine redundancy did not arise, and that the dismissal falls under the Unfair Dismissals legislation and hence an unfair dismissal arose and damages should be awarded to the applicant.

What often happens is an employee is notified there needs to be restructuring within the employers business with implications for the employees job.

Before this, however, no Consultation takes place between the employee and employer prior to the dismissal. The employee should be asked to put forward proposals on how the company could proceed forward without losing the targeted worker.

No other options but dismissal were considered by the employer. The employee was not offered any right to representation or appeal, or possibility to retrain in a separate role, for example.  

The employee contends the employer re-hires a new employee with a different title, but with similar duties to the duties they were conducting while in the role.

The employer contends a genuine redundancy arose and seek to rely upon S. 6(4) of the primary Act which states:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Redundancy cannot be used, however, as a vehicle to remove an employee from his/her job. Redundancy cannot be used as a disguise for a dismissal that falls under the unfair dismissals legislation.

The burden of proof in these cases is on the employer to show the termination of dismissal came within a lawful reason. The employer’s duty is to show which kind of redundancy is apposite.

If an employer has an issue with an employees performance, makes the employee redundant, the employee will likely contend that there were no performance reviews, investigation, he/she was not subject to any disciplinary process, or given the right of representation or appeal, and therefore an unfair dismissal arose as no genuine redundancy took place.

The case officer then may conclude the selection of the employee (ie selection criteria used) for redundancy was an unfair dismissal and damages should be awarded to the applicant.

Burden of Proof – Unfair Redundancy Selection Cases

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.

Subjective Assessments

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.

Selection Criteria Matrix

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

Roger Cleary, L.L.B., Solicitor

Roger is a Bachelor of Law, Solicitor has an advanced diploma in employment law & has over ten years of experience specialising in employment law advising employees and employers on unfair dismissal, redundancy, discrimination, contractual dispute matters, bringing and defending cases before the Workplace Relations Commission and Labour Court.

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