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Redundancy and unfair selection

claim for unfair dismissal fails

Redundancy and unfair selection – claim for unfair dismissal fails


The case of Oliver Flanagan v Castlethorn Construction UD 145/2010 concerned a claim for unfair dismissal on the basis that the Claimant was unfairly selected for redundancy and that his role was not redundant at all as the work was being done by other employees. Although the case merely re-iterates ongoing principles concerning selection for redundancy and related matters, it is still nonetheless useful to remind ourselves of general principles.

Background

The Claimant commenced employment in 1998 and became a site clerk in 2000 and was promoted in 2006. In early 2009 a number of redundancies took place and the Claimant was placed on a three-day week. During 2009 his duties also changed and he reverted to a finishing foreman and undertook snagging and other duties. On 4th November 2009 the Claimant was informed that he was to be made redundant and that the contracts manager and site manager would be filling his role. The Claimant stated that the redundancy process was last in first out. He also claimed that he had not been given a copy of the selection process or a chance to appeal the decision.

The Respondent stated that the Claimant was selected for redundancy as the skills he had didn’t suit the skills for the work the Respondent had left.

Determination

The Tribunal noted that the situation clearly fell within the definition of redundancy as set out in Section 7(2)(c) of the Redundancy Payments Act 1967 ( as amended)

“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”.

On this basis the Tribunal found that the Claimant’s role was redundant. The Claimant also alleged that he was unfairly selected for redundancy and the Tribunal looked at Section 6(3) of the Unfair Dismissal Act 1977 (as amended) and noted that for this section to apply there must be other employees in similar employment to whom the circumstances constituting the redundancy applied equally. The Tribunal also noted that the Claimant had not shown that he was selected for redundancy on one of the grounds contrary to subsection (2) such as race, religion or political opinion.

In respect of agreed procedures the Claimant stated that the “Last In First Out” rule applied. The Respondent disagreed and stated that it was an element to be considered in the selection process and other considerations also arose e.g. how the skill set of different employees would match the declining needs of the business.

The Tribunal also noted that part of the Claimant’s argument implied that certain other employees doing different types of work should have been moved to make way for him to do work as he had done such work in the past and was trained to do it. The Tribunal noted however had this happened such employees would have justifiable complaints.

The Tribunal found that the Claimant was not unfairly selected for redundancy and the claim for unfair dismissal fails.


1 Response

  1. Hello,

    I was reading your note above and clicked on the link mentioned in the opening lines “Oliver Flanagan v Castlethorn Construction UD 145/2010” but it simply brings me to the Employment Appeals Tribunal website homepage rather than to a PDF. Do you know if the pdf file itself is actually located behind in the “members area” of the EAT site? If so are you a member and could you download it directly to your media section of this blog so that it can be downloaded and read?

    When I have received a reply to this I will come back onto the site as my wordpress will notify me.