Employers, if you have two or more employees performing the same or similar role and you are considering making redundancies, it is not simply a case of “picking and choosing” which employee you wish to make redundant. You must ensure you have clear selection criteria in place and be able to ensure you can justify why you selected one employee over another.
The April case of A Sales Manager v An Employer ADJ00018415 deals with the issue of fair selection where a sales manager argued that he was unfairly dismissed as a result of being unfairly selected for redundancy as well as other procedural issue. This case also considered the case of Williams –v- Comp Air (1982) 1 ICR 156 where Justice Browne-Wilkinson, in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act in a redundancy situation, namely:
1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
The cases of Boucher –v- Irish Productivity Centre (1994) ELR 2005, Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009) and JVC Europe v Panasi (2011) IEHC 279 were also considered by the Workplace Relations Commission.
In this case the Workplace Relations Commission determined that the sales manager had been unfairly dismissed and was also entitled to his bonus payment. The Adjudicator stated:
“I have further noted the Respondent Company did not provide any or adequate evidence in relation to any redundancy procedures and whether there was any appeal procedure available. Further, there was a less or no adequate explanation and an absence of transparency with respect to any criteria or matrix for selection for redundancy.
Accordingly, I have concluded that the claimant was unfairly selected for redundancy and consequently I am upholding his complaint of unfair dismissal”.
The issue of redundancy is unfortunately becoming more topical in light of #covid-19. To avoid claims for unfair dismissal and other related claims, employers must ensure they follow proper and fair procedure and ensure they have the correct steps in place before they even consider making an employee redundant.