Legal Article - Employment Law

Unfair Redundancy Dismissal

Even where a genuine redundancy situation applies, some employees may be able to complain that making them redundant was unfair (i.e. unreasonable). This normally occurs when the employer either:

• Selects them unfairly i.e. should have made someone else redundant
• fails to consult with the employee before telling them that they are redundant
• does not make an offer of alternative employment when there are other vacancies.

(i) Unfair Redundancy Selection

Selection for any of the following reasons will automatically be unfair if the employee

• was, or proposed to become a trade union member

• participated or proposed to participate in the activities of an independent trade union at an appropriate time

• was not, or refused to become or remain, a member of any union or of a particular union

• was pregnant or has given birth, or for any other reason connected with her pregnancy or childbirth

• Disabled (but able to do the job satisfactorily)

• Because of their marital status, race, colour, nationality, sexual orientation and gender, ethnic origin. In Northern Ireland, the above applies as does making an employee redundant purely due to their religion or political beliefs.

Otherwise selection could be unreasonable if the “pool” from which the selection was made was unreasonably defined, and/or the selection criteria used were unfair or unclear.

Tribunals have concluded that the following factors are relevant in deciding the “pool” of employees from which some will be selected for redundancy:

• Whether other groups of employees are doing similar work to the group from which selections were made

• Whether employees’ jobs are interchangeable

• Whether the employee’s inclusion in the unit is consistent with his or her previous position
• Whether the selection unit was agreed with a recognised union or employee representatives.

Selection criteria used must be capable of objective assessment by reference to such data as attendance records, efficiency, length of service, skills and performance and probably age. Last in, first out (LIFO) is a commonly used criteria, but could be considered to be indirect sex discrimination as women more often than men have short service. Vague criteria such as “needs of the business”, “balance of skills” or “attitude to work” without further refinement may be too subjective to be reasonable.

(ii) Individual Redundancy Consultation

Before any person is selected as redundant, all those who are potentially liable must be individually consulted in advance, unless the employer could reasonably conclude in the light of the circumstances known to them at the time of dismissal that consultation would be utterly useless.

In most cases the employer is expected to give those consulted a fair and proper opportunity to understand fully the matters surrounding the possible redundancies, an opportunity for them to consider and express their views on these matters, and, thereafter, consider those views properly and genuinely.

It is not sufficient to simply give employees a letter warning of impending redundancies and then after the employee has been selected for redundancy to offer to discuss matters. There is no fixed time as to when consultations should begin except that it should be “as soon as practical”.

(iii) Reasonable Offer of Alternative Employment

An employer is expected to seek alternative work for the employee so far as is reasonable and where there is alternative work to give the employee an opportunity to decide whether they would like to be considered for it.

The employer does not have to create alternative work, but where there are vacancies these must be offered to the proposed redundant employees no matter how unlikely it might seem that they would be interested in those vacancies, providing they are capable of doing the job after reasonable training if necessary.

Published: 02 Jun 2011

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