Latest in Employment Law>Articles>Review of Recent EAT Decision: Selection Criteria for Redundancy
Review of Recent EAT Decision: Selection Criteria for Redundancy
Published on: 06/08/2015
Issues Covered: Dismissal
Article Authors The main content of this article was provided by the following authors.
David Fagan
David Fagan

Today's EAT review concerns the case of Lukasz Kowalik against the recommendation of the Rights Commissioner in the case of: Vincent Power (UD 1120/2010). It examines the criteria for selection in a redundancy situation and highlights the importance for employers of using selection criteria which are reasonable, objective and are applied in a fair manner.

Case Name: Lukasz Kowalik against the recommendation of the Rights Commissioner in the case of: Vincent Power (UD 1120/2010).

Legislation: Unfair Dismissals Acts 1977-2007; Payment of Wages Act, 1991

Jurisdiction/Subject Matter:
Selection criteria for redundancy


Facts

The claimant was employed as a waiter at the respondent’s café. In 2009, the business was experiencing difficulties and the respondent decided to let the claimant go. Another waitress taken on after the claimant who had been promoted to assistant manageress was retained. The claimant had been on sick leave at the time of his selection for redundancy and the respondent had never raised any issues over this absence. The respondent argued that there were a number of grounds justifying the selection made. In particular, the respondent noted that the claimant had been rude to a customer. This incident was never raised with the claimant nor was the claimant ever subject to any disciplinary action.


Determination

The tribunal was satisfied that a genuine redundancy situation existed in July 2009. The tribunal found that the criteria for selection were flawed and the respondent should not have been influenced by factors which did not form part of the decision process. Specifically, the respondent should not have attributed weight to a complaint of rudeness against the claimant which had neither been put to him nor investigated.

The tribunal found that the respondent had failed to make any meaningful distinction between the role of the claimant and that of the fellow employee who had taken up employment with the respondent after the claimant.

The tribunal also commented on the lack of discussion or consultation with the claimant prior to his dismissal.

The tribunal determined that the claimant was in fact unfairly dismissed and awarded the claimant €4,000 together with €360 by way of notice pay.


Legal Review

Redundancy has two fundamental characteristics – it is impersonal and it involves change. Therefore when selecting employees for redundancy it is essential that the selection is made on a fair and objective basis.

In Ireland the most common methods of selection used are the scoring matrix which rates employees under a number of headings and the “last in first out” (LIFO) method. Whichever method of selection is opted for by the employer, there is a requirement for all employers to act reasonably in effecting any dismissal. Section 6(7) of the Unfair Dismissals Acts provides that “in determining if a dismissal is an unfair dismissal, regard may be had… to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

The standard of reasonableness which has been developed by the Tribunal over the last number of years has focused on the necessity to consult with employees and this was clearly absent in this case. At minimum, the employee should be provided with some notification of the reasoning behind his or her dismissal and some discussion of that reasoning should take place before a final decision is made by the employer.

Redundancy is an impersonal process and thus the fact that a person is out on sick leave, such as in this case does not preclude an employer serving notice of redundancy on him or her, provided that the employee's sickness was not a factor in him or her being made redundant. Once the selection criteria are clear and transparent, fair procedures have been followed and the minimum notice has been given, a person on sick leave can be made redundant.


Conclusion

This case highlights the importance of using selection criteria which are reasonable, objective and are applied in a fair manner. If this the approach adopted by employers, then any claim that is brought for unfair dismissal will be unlikely to succeed.

Full case decision:
http://bit.ly/IE7Czy

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 06/08/2015