If the employee can show that there was technically no legitimate case for their redundancy under the Redundancy Payments Acts, 1967-2003 or that he/she was unfairly selected for redundancy, he/she can claim unfair dismissal.
Once an employee establishes a prima facia case, the onus is on the employer to prove that a genuine redundancy situation existed and that the employee was not unfairly selected for redundancy.
Selection issues arise where the employee is selected from a group of employees in the ‘pool’ for potential redundancy and claims that he/she was unfairly selected from that ‘pool’.
Therefore, those who are employed in “stand alone” position – such as management – normally find it very difficult to argue that they were unfairly selected for redundancy.
However, by way of example, selecting 2 sales people from a team of 6 sales people is fraught with danger. The selection process and selection criteria need to be thought through and implemented very carefully to avoid inference of bias and subjectivity among the people selected for redundancy and to successfully defend any claim for unfair dismissal.
Obviously, a redundancy will be deemed unfair for the purposes of the Unfair Dismissals Acts if the selection of the employee resulted wholly or mainly from:
- Membership / Trade union activity
- Religious / Political opinions of the employee
- Civil or criminal proceedings against the employers being taken by the employee
- Race
- Sexual Orientation
- Age
- Membership of the travelling community
- Pregnancy
- Gender
- Family Status
- Civil Status
If the employee was selected for redundancy counter to an agreed procedure (between employer and union, for example, an agreed last-in-first-out (LIFO) procedure) and there was no special reasons justifying a departure from that procedure, the redundancy will be deemed unfair for the purposes of the Unfair Dismissals Acts.
The “last-in-first-out” (LIFO) rule is simple to apply (based on commencement date of employee/length of service) and is wholly objective. However, it may leave the employer without the skills they need to run their business successfully e.g. in technology related businesses, the newer employees may have the technical skills and qualifications needed in a fast changing technological environment.
The ‘first-in-first-out’ (FIFO) principle may be used but is rarely used in practice.
For many companies, and in the absence of specifically agreed selection procedures, where there are two or more employees engaged in similar roles., the employer would be wise to adopt a ‘selection matrix’ approach.
The selection matrix would comprise a range of objective criteria for differentiating between one employee and another. Criteria could include, for example, qualifications, training, skills, experience/ specific relevant experience, performance history and track record, competencies, and length of service.
Where an employee claims unfair selection for redundancy, the employer must be able to objectively justify the criteria chosen and the ratings/scores given to the employee under each of the criteria. Otherwise, failure to do so may render the dismissal unfair.
The preferred approach is to therefore draw up the selection matrix, consider the employees in the ‘pool’ and carefully rate/score them against each of the criteria using objective data only. The cores should be reviewed with the employee and revised accordingly where there is objective data for doing so. For example, an employee may have a relevant qualification that the employer did not know about, and this could be included for scoring purposes.
There may be a number of iterations of the process with the employee being allowed to view and input into their own score.
The right to appeal a decision to select an employee for redundancy should also be provided.
Another favoured method to select for redundancy is to invite all people in the ‘pool’ to be re-interviewed for the remaining jobs along with the use of aptitude and possibly psychometric tests
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