Many employees who have been made redundant feel they were selected unfairly and then seek to activate the Unfair Dismissals legislation by taking a case against the former employer.
If an employee was not selected fairly, and an unfair dismissals case is taken, the adjudication case officer may find against the employer by concluding the employee was dismissed under the provisions of the Unfair Dismissals Acts.
Redundancy situations in the workplace can incorrectly be seen by employers, on occasion, as opportunities to remove employees they no longer want that they deem less competent.
If an employer terminates employment of an employee along that thought process and deed, it is quite possible that claims for unfair dismissal will arise.
In cases taken of this nature, it is fundamental that a genuine redundancy arises. Redundancy concerns the job not the man/woman. It is the job that must go. The reasons that qualify as a genuine redundancy are set out by statute in S.7 of the Redundancy Payments Acts.
If an employer dismisses an employee by reason of redundancy, and an employee contends no genuine redundancy arose, an adjudication case officer hearing the inquiry, will look behind the veil of dismissal to ascertain what transpired.
In the case of Boucher V Irish Productivity it was stated that in addition to proving there was a genuine redundancy, the employer had :
“to establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.
If an employee was chosen for their disciplinary record, for example, this then is selection based on subjective criteria and evidence a subjective assessment was conducted as opposed to an objective assessment.
It is necessary for an employer to be able to prove the employee was selected on objective, independent and visible criteria.
Why one employee was chosen over another ? for example.
An employer must be able to show the selection process was conducted fairly and was based on objective criteria.
It is very important for employers when considering redundancy selections, to Consult with employees, afford them the opportunity to respond regarding selection. Many employers don’t wish to do this as they do not wish to discuss anything financial with the employee regarding the business.
Employees should be asked for their input or contribution regarding the selection process and a fair scoring selection system should be applied.
In Employment Appeals Tribunal 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 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 to be adopted will come under close scrutiny if an employee claims that they were unfairly selected for redundancy. The employer must follow the agreed procedure when making the 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.
Fair procedures must be adopted by employers when engaging in selecting employees prior to dismissal.
In an unfair dismissal case the adjudication case officer will assess the reasonableness of the employers conduct with respect to the selection process, as we can see from the following paragraph.
Section 6(7) of the Act states:
Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…
Employers should not make the decision to dismiss employee x before meeting with them.
Employers should adopt a Consultation process with the employee.
Employers should consider alternatives to dismissing the employee and be able to show this.
Employers should discuss the selection criteria with each employee and get their feedback.
Employers should offer an employee a right of representation at meetings discussing selection.
Disclaimer – Redundancy Selection in Ireland
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 obtained 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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