Redundancy in Ireland is a complex area of law were both the procedures surrounding redundancy meet with proceedings in relation to unfair dismissal.
The Unfair Dismissals Act, 1977 (here) provides in Section 6.4(c) that a dismissal is deemed not to be an unfair dismissal if it resulted wholly or mainly from the redundancy of the employee. The result of this is that a genuine redundancy situation is an absolute defence to a claim of unfair dismissal brought by an employee provided that the employee has been fairly selected for redundancy.
Unfair Dismissal in Ireland.
The majority of applications brought before the Employment Appeals Tribunal (or “the EAT”) for unfair dismissal relate to the selection process of employees in respect of redundancy – or the unfair selection for redundancy of the employee. Any claim, by way of defence, by an employer that an employee was removed from his post by reason of redundancy and not unfair dismissal is closely reviewed and analysed by the Employment Appeals Tribunal.
In order to provide an absolute defence, the burden of proof rests upon the employer to show to the Employment Appeals Tribunal that a genuine redundancy situation existed at the time and that• fair selection procedures were adhered to and there was not a lack of procedures (or other aspects) which resulted in an unfair selection for redundancy.
This reversal of the burden of proof gives an employee who is claiming unfair dismissal under the Unfair Dismissals Act, 1977 an advantage. If procedures in respect of redundancy do not exist within the Company or if the Company has strayed from such procedures, then the employer has a very difficult task of proving a genuine redundancy situation existed at the time.
What is an unfair selection for redundancy?
One of the essential features of a redundancy dismissal is the requirement that the function within the Company is being made redundant, not necessarily the person. There must be impersonality in the decision making process – it cannot be personal and, in fact, if elements of a personal nature enter into the decision making process (such as his behaviour or disciplinary record) then the employers defence to an unfair dismissal is in difficulty and may result in an adverse finding against the employer that a genuine redundancy situation did not exist.
So an unfair selection is where an employer initially chooses the employee for summary dismissal and then attempts to disguise the dismissal as a redundancy situation. Invariably, such an approach rarely succeeds.
What is a fair selection for redundancy?
This is an area far more complex and reflects the various procedural steps an employer must follow if a genuine redundancy exists.
There should be proper procedures in place (as provided in an employee handbook or suchlike) which lists the steps involved in the redundancy procedure. There should also be notes in relation to meetings at management level where redundancy was discussed and the selection criteria decided upon. This selection criteria must then be applies to all employees with the result that the lowest scoring employee is made redundant. If there has not strict adherence to these steps, then an unfair dismissal will have taken place.
Employers must also act reasonably, in the context of the business. They must have some form of meeting or consultation must take place prior to raising the issue of redundancy. This meeting should highlight to the staff that redundancy is being considered. The staff should also be allowed to contribute to alternative to redundancy – pay reductions, short hours, cost savings – and any proposals should be seriously considered at management level and any reasons for the refusal of the alternatives should be communicated to the staff.
In relation to the management meetings and discussions at management level regarding redundancy, there must be a consideration of alternate options to redundancy which must be fully ventilated at the management is it in advance of the redundancy decision being made.
So even when it appears that some steps have been followed, there is a obligation to follow all the steps prior to making the decision. That said, the larger the company, the higher the onus is placed upon them to comply with all of the steps.
At O’Kelly solicitors, we have the expertise in employment law and employment rights to ensure that your rights are both protected and vindicated. We ensure that you achieve the best result in your application to the Employment Appeals Tribunal, whether that is reinstatement or compensation.
To discuss you employment law issue, whether its unfair dismissal, unfair selection for redundancy or constructive dismissal, please contact Mark O’Kelly, the principal of the Firm on 086 7889753 or via email to email@example.com. All our contact details can be found here.