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Redundancy

Tribunal looks at the "reasonable employer" test

Redundancy – Tribunal looks at the “reasonable employer” test


In the case of Emma Thompson Sauvage v Gerard Kennedy UD 242/2010 published yesterday, the Employment Appeals Tribunal looked at redundancy and considered what a reasonable employer would have done in the circumstances.

Background

In this case the Respondent was in the business of making repairs to crash vehicles. The Claimant commenced employment in 2001 until her position was selected for redundancy in April 2010. The Claimant commenced her employment as a receptionist and was subsequently promoted to accounts in 2003/2004. Between then and 2007 the Claimant assisted in the training of any new employees into the position of receptionist. A new receptionist was recruited in 2007.

The Claimant gave evidence that her role encompassed a number of duties and she was assisted by the accountant and there was a cross-over between the roles. The Claimant went on maternity leave in 2009 and when she returned she was told that she was being placed on a three-day week. Upon the Claimant’s return from maternity leave, the Respondent noted a continual decline in business and decided to make the Claimant’s role redundant.

The Claimant was informed at a meeting on 15th April 2010 that her position was being made redundant. The Respondent accepted that he had not informed the Claimant in advance. The Claimant gave evidence that she had asked if she could return to reception and was informed that it was less money which she agreed to. The Respondent stated that he did not recall the Claimant agreeing to this. The Claimant also stated that she put forward the option of job sharing however the Respondent never reverted to her on this option.

Determination

The Tribunal acknowledged that the Respondent’s actions were to ensure that the business survived but noted that as a result the Claimant was not treated fairly.

Firstly, the Respondent unilaterally reduced the Claimant’s working week from five days to three days per week on her return from maternity leave in circumstances where the Claimant was entitled to return to the same role on the same terms and conditions. The Claimant’s acceptance of the three-day week demonstrated her committment to the Respondent’s business and her flexibility in this regard.

Secondly, some six months after her return from maternity leave, the Claimant was dismissed without prior warning or consultation.

The Tribunal found that it was inconceivable that the Claimant with nine years experience in the administration end of the business could not have made a meaningful contribution to discussions surrounding the reorganisation of the business. The Respondent did not give any meaningful consideration to an alternative course of action.

The Tribunal believed that a reasonable employer would (a) have had a period of prior consultation (b) have been open to employee input (c) have considered all reasonable alternatives, (d) have had fair and transparent selection criteria and (e) have applied these evenly. The Tribunal was of the opinion that the Respondent failed in this regard. There was no prior consultation. The respondent did not invite nor was he open to employee input. The Tribunal did not accept that the Respondent gave any genuine consideration to alternatives to dismissing the claimant.

The Tribunal was not convinced that the Respondent applied selection criteria prior to dismissing the Claimant and even had such criteria been applied evenly and fairly the Tribunal was not satisfied that this would have identified the Claimant as the person to dismiss. Further the Tribunal noted that no real consideration appears to have been given to the Claimant’s longevity of service.

The Claimant was awarded €20,000 under the Unfair Dismissal Acts.