Selection Criteria for Redundancy must be based on objective reasoning by the employer.
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 ?.
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.
Redudancy 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.
There are only a set number of reasons set by statute wherein a genuine redundancy can arises which can be seen here.
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.
Disclaimer – Selection Criteria for Redundancy & Performance
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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