Key Post I think I have been made redundant unfairly!

Brendan Burgess

This is a general introduction to the topic but it is not a legal guide. If you think that your redundancy is unfair, you may want to take legal or other professional advice on the topic.

Redundancy or dismissal?
Your employer cannot use redundancy as an excuse for getting rid of you. The reason for the redundancy must be genuine. The job must be gone. If you are made redundant and the employer takes on a new employee to do your job, then you will have a good case for claiming to be unfairly dismissed rather than redundant. Your employer would have to prove that you were genuinely made redundant.
Genuine reasons for redundancy are fairly obvious:

  • Your employer is shutting down
  • Your employer requires fewer people due to a drop in business activity
  • The section of the business you are in or the branch you are in is being closed down
  • The work you are doing is being outsourced to a third party
  • Your employer decides that the work you are doing needs to be done by someone who is better qualified
  • Your job is merged with another job for which you don't have the skills.
If you think that the redundancy is not genuine you can take a case to the Employment Appeals Tribunal.
To take a case for unfair dismissal, you will normally need to have 12 months' service with the employer.

Unfair selection for redundancy
In the current environment, most redundancies are genuine. Your employer needs to reduce the staff by 20% and you have been selected for redundancy. However, the selection must be fair. If you think you have been selected unfairly, you can claim unfair dismissal. The employer would have to show that the selection was fair.
Your employer must use fair, reasonable and objective criteria for selecting the staff to be made redundant. They may wish to retain a certain mix of skills and experience. The most interesting case is the Virgin case where they developed a complex grid for scoring people and this was held to be fair.
The following are fair criteria:

  • Qualifications
  • Skills
  • Experience
  • Timekeeping and attendance
  • Performance
  • Disciplinary record
If you employment contract specifies the criteria which will be used, then your employer must follow these criteria.
Under the Unfair Dismissals legislation, your employer is not allowed to select you on the basis of trade union activity or your political views.

Unfair selection on the grounds of inequality
Selection on any of the following grounds would be unfair under the Employment Equality Acts:

  • Pregnancy
  • Gender
  • Disability
  • Marital status
  • Family status
  • Age
If you have think that you have been unfairly selected on one of these grounds, then you can go to the Equality Tribunal

I am being made redundant while people with less service have been kept on?
An employer is under no obligation to select people on a Last In First Out basis. Your employer may choose this method, but they are under no obligation to do so.
However, if the employer used LIFO in a previous redundancy, they would have to be able to justify why they were not using this criterion this time.

Your employer should consult with you
Even if the redundancy is genuine and even if you have been selected fairly, your employer must still treat you fairly in discussing the matter with you. If they don't do that, you can take a case to the Employment Appeals Tribunal. Here is an [broken link removed] of a case where employees won compensation as the process was deemed to be unfair.

Your employer has to be able to show that the redundancy was fair
If you take a case to the Employment Appeals Tribunal, it is up to your employer to prove that the redundancy was genuine and that the selection was fair.

Taking a case to the Employment Appeals Tribunal
If you think that the redundancy is not genuine or that you have been unfairly selected for redundancy, then you can take a case to the Employment Appeals Tribunal. Although most people use a solicitor for this, there is no obligation to do so. In fact, it was designed to be a solicitor free zone. Each side pays their own legal costs, so if you lose the case, you will not have to pay your employer's legal costs.
Don't forget - to take a case for Unfair Dismissal, you must have one year's continuous service with your employer.

Can I be made redundant while pregnant?
Yes. The fact that you are pregnant should make no difference to the selection process.
However, if an employer selects you because you are pregnant, then the selection would be unfair.

Can I be made redundant while on maternity leave?
Your employer is not allowed to give you formal notice of redundancy while you are on maternity leave or extended maternity leave.
On your return from maternity leave, your employer will give you formal notice and your date of redundancy will be the date that the notice expires. This would be minimum notice set out in the Redundancy Acts or the notice period set out in your contract if that is higher.
Your employer can and should inform you that you will be made redundant on your return.
You should probably take the maximum extended maternity leave as you will continue to accrue holiday pay and the statutory redundancy will be higher as your length of service will be higher.

Case Study Compagno v. Virgin Retail UD 186/1
In this interesting case, a security supervisor claimed he had been unfairly selected for redundancy. The employer argued that while the role of security supervisor was to be retained, the person would have to become multi-skilled. They made the selection based on the following criteria:
performance and capability

  • quality of work
  • attitude and approach to work
  • adaptability and flexibility
  • supervisory performance
  • potential
  • customer focus
  • product knowledge
  • attendance
  • length of service, if all else was equal
The Employment Appeals Tribunal held that the selection was fair.

Case Study ADT Fire & Security Ltd

In this case, the Labour Court recommended that the company apply the Last In, First Out criterion, but gave no reasons for its recommendation.

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