Right to Redundancy
An employee can activate a right to a redundancy payment in a temporary Lay-Off situation if certain conditions are met.
Section 12 of the Redundancy Payments Act 1967 provides this right to an employee:
(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —
( a ) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and
( b ) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.
What is a Lay-Off
When a lay-off occurs is defined by S. 11 of the Redundancy Payment Act 1967 which states
Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—
( a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
( b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.
If an employer wants a Lay-Off situation to be considered not a redundancy situation, it is very important that the employer has complied with the Notice requirements of the Lay-Off to the employee. This should be done in writing and the employer should ensure this has been successfully communicated to the employee.
Sometimes an employer decides to refute an employee’s claim of entitlement to a redundancy payment and a declaration of redundancy by arguing a temporary Lay-Off situation arose, as opposed to an permanent dismissal.
If an employee only receives notice that his/her job is on a temporary Lay-Off from work after that employee makes a claim for redundancy, suspicions will be raised whether the Lay-Off in question is a genuine situation or not.
An adjudication officer ie decision-maker of this claim at the Workplace Relations Commission will review the facts and assess if the employment was terminated for one of the reasons within S.7(2) of the Redundancy Payment Act 1967 which states:
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.
If an adjudication officer is satisfied one of the above reasons has been satisfied, then a general right to redundancy for the employee will likely be held to arise if the employee has 102 weeks of service completed with that employer.
Employer Defence to Redundancy Claim
Employers who re-engage an employee in employment can seek to rely on S.9 of the Redundancy Payment Act to argue the employee is not entitled to a redundancy lump sum payment.
An employer will have to prove compliance though with the conditions set out in S.9 to be able to rely on this provision.
It will assessed if there exists a renewed contract ? or was there a new contract altogether ? Are the terms and conditions of the current employment different to that of the old employment contract ? Did the re-engagement or renewal take effect immediately on the ending of the employment under the previous contract ?.
If this did not arise, did the employer furnish an offer in writing to the employee before the previous contract came to an end ? or within the immediate 4 weeks of the ending of the previous contract ?.
There is another defence available to the employer which is if the employee was re-engaged by another employer and conditions must also be satisfied by the previous employer who is defending the claim to rely upon this defence successfully under S.9(3) of the Act.
Disclaimer to this Lay-Offs and Redundancy Article
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.