Richard Grogan on employment law: Dismissal and selection for redundancy
Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on dismissal and selection for redundancy.
In case ADJ1516 the employer contended that the employee was dismissed by reason of redundancy. It was claimed that the employee had been offered alternative employment on reduced hours but turned it down. The employee contended that while he was on sick leave another individual was taken on and was now doing his job.
The Adjudication Officer in this case helpfully reviewed the provisions of section 6(1) of the Unfair Dismissal Act 1977. The Adjudication Officer also referred to section 6(4).
The Adjudication Officer found that the employee had been employed on a contract of indefinite duration commonly called a permanent contract. The argument of covering for maternity leave was rejected.
The Adjudication Officer set out the case of UD206/2011, where the EAT stated:
“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner”
The EAT in that case went on to state:
“there were no serious or worthwhile consultations with the Claimant prior to making her redundant. The consultation should be real and substantial”
The EAT in that case also stated:
“There was no worthwhile discussion in relation to the criteria used for selecting the Claimant. The selection criteria should apply to all employees working in the same area as the Claimant but should also consider other position which the claimant is capable of doing”
The Adjudication Officer in this case held that no evidence was presented as regards any objective and transparent selection criteria being used prior to deciding that the employee be made redundant. He held that an offer of a two day week could not be considered a suitable alternative employment as it constituted a 60% reduction in working times from earnings. The employee was not advised that he could appeal the decision.
An award of €21,750 was made.
This case is a timely reminder that in making an employee redundant an employer must:
- Have a selection criteria
- Make sure that the selection criteria is communicated to the employee.
- Discuss the proposed redundancy with the employee.
- Consider other alternative positions for the employee.
- Apply the selection criteria equally to all staff.
- Make sure that the employee has a right of representation at any discussion.
- If it is decided that the employee be made redundant give the employee a right of appeal.
Redundancy is a process where it is the job or the position that is being made redundant. It is the effect of that position being made redundant that the employee becomes redundant. Where redundancies are being considered it is not a question of keeping the best employees. It is a issue of deciding which jobs will go and then applying the selection criteria to the people in those jobs.
If an employer has three sandwich makers and three food servers. The employer decides that only two sandwich makers are needed and two servers. Then one sandwich maker and one food server will be made redundant. It is not a matter of deciding that all three sandwich makers are really good workers and therefore making two of the server’s redundant and moving one of the sandwich makers to become a server. This might be a very simple example but it is surprising how often employers believe that when it comes to redundancy the selection process is on the basis of who is the best employees or employers seek to move people around so as to maintain the best employees that is not redundancy. Redundancy is the actual job which is going and it is only as a result of the job going that an individual loses their employment.
Get a redundancy wrong and an employer can be on the wrong end of an Unfair Dismissal case which can be expensive.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.