This article will give some guidance on how the Selection process should work when it comes to redundancy situations at work.
Scenario – an employee is called to a meeting with his/her employer and advised that he has been provisionally selected for redundancy.
At this meeting an employer assures the employee the process will be fair, and they ie the employer will implement a fair selection process.
The employee feels the opposite in fact transpired ie the selection process was unfair, unreasonable and he was not afforded with a genuine consultation process – prior – to selecting him/her for redundancy.
The aggrieved employee then makes a complaint pursuant to S. 8 of the Unfair Dismissals Act to the employer.
Determination of claims for unfair dismissal
A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and of the Workplace Relations Commission.
The former employee is satisfied a genuine redundancy situation did Not actually exist and/or the selection process was pre-determined, unfair and he/she was unfairly dismissed, which is contrary to law.
An employee should know that as stated in Boucher & O.-V-P.C. the EAT stated
“The onus of proof is on the employer to establish that he acted fairly in the selection of an employee for redundancy”.
Therefore the burden of proof is on the employer to prove what he/she did was fair regarding the selection process. The process employed by the employer will be assessed at a case hearing.
In the same case it was also stated:
“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.”
So, a question which needs to be examined at a case hearing, is did an ‘inquiry’ take place at all. Was there a genuine attempt by the employer at this or were they just going though the motions with a pre-determined outcome bound to happen.
Defence to an Unfair Dismissal Claim
Redundancy is a defence to an Unfair Dismissal claim made by the employee which can be seen in Section 6 of the Unfair Dismissals Act as follows:
‘’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.
Genuine Redundancy Test
When an employee is dismissed, there must be a genuine reason for the redundancy. The law sets out the reasons for when a dismissal is a dismissal by reason of redundancy. This is to stop employers dismissing employees and just giving the reason as that of redundancy, when there is no genuine basis in fact for that proposition.
What was the reason for the Redundancy will be assessed in any case.
S. 7 of the Redundancy Payments Act(as amended) sets out the circumstances the when a dismissal will be considered a redundancy.
‘’For the purposes of subsection (1), 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 the dismissal is attributable wholly or mainly to—
( 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 henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained’’.
An employer may notify an employee the redundancy reason is that they are going to operate with fewer staff for purely economic reasons, for example.
This is a key test in redundancy cases.
Each selection process must be transparent, fair and objective. Was the employee selected impersonally ? and objectively ?. An employee will have a good indication of this themselves as they will be familiar with what happened and the workplace dynamics and personalities.
Say the employer lays out criteria regarding the selection process.
- Was the aggrieved employee afforded the opportunity to be involved in this process ?.
- Was he/she asked for an input ?.
- Could they challenge, for example, any scoring ?.
- Did the decision-maker look at things objectively or did the process instead have the character of a subjective performance assessment ?.
- This selection process must be objective and fair.
- Did personal bias arise ? is another good question to ask and assess.
By examining the facts at a case hearing, an Adjudication officer is looking to assess whether the employer’s conduct was reasonable or not.
If the Adjudicator concludes the employer’s acts or omissions were not reasonable and/or the selection process was flawed, then the employee is on the path to succeeding in an unfair dismissals claim taken.
Redress for unfair dismissal
The following are various levels of redress an employee is entitled regarding unfair dismissal matters. It is the Adjudicator or the Labour Court who decides upon the appropriate relief.
- re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
- re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
- if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed.
Frequently Asked Questions
An employee who qualifies is entitled to two weeks statutory redundancy payment for every year of service, plus a bonus week.
This is answered above.
This should not happen and the employer may be open for an unfair dismissals action being taken by the former employee.
In redundancy it is the position / role / job that becomes redundant.
If an employer terminates an employee giving a reason for the redundancy, the only valid reasons for redundancy are those permitted by the Redundancy Payments Acts.
There is a significant difference between a genuine redundancy and a sham redundancy. A sham redundancy can give rise to an unfair dismissal claim. If a disingenuous redundancy reason is given, this is unfair, and contrary to the legislation, and it can then be the duty of the employer on which the burden of proof resides, to prove no unfair dismissal arose.
To calculate Redundancy you need the Date of Commencement, the Date of Termination, and the Gross Weekly Sum.
By typing in the above information to a Redundancy Calculator, you can find many online, it will give you the sum you are entitled to.
What is a true redundancy situation ?
There are 5 reasons set by Law whereby a dismissal constitutes a redundancy.
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 henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.
Many of the above genuine reasons for redundancy relate to the economic need of the enterprise. Redundancy dismissals are not about the employee’s personality, performance or a personality clash with the employer, for example. Genuine redundancy situations are impersonal to that employee.
Do you have to pay Redundancy ?
If an employee has been dismissed by and employer, is entitled to redundancy under the Redundancy Payments Acts, the employer has a legal obligation to discharge the lump sum payment to the employee.
If an employer contravenes the redundancy payments acts, an employee should avail of and activate their legal rights under the legislation.
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.
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.
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