Given the pressures faced by businesses during the pandemic, it is saddening but not surprising to see a rising number of workers being made redundant. A redundancy arises where the employer ceases trading or has a diminished need for employees.

A redundancy must follow fair procedures or the employer may land themselves in hot water in respect of an unfair dismissal claim or an employment equality claim.

Although, it is not an obligation to consult with employees prior to a non-collective redundancy, it is always advisable to do so and to seek volunteers for redundancy. Otherwise, the person or people retained must be the best fit for the role, holding the most appropriate qualifications and experience.

The employer must not discriminate based on:

  • Age
  • Gender
  • Civil Status
  • Family status
  • Sexual orientation
  • Religion
  • Disability
  • Race
  • Membership of the traveller community

When making the selection, the employer must be conscious of any indirect discrimination based on these grounds.

The employer must not select for redundancy an individual who is on protected leave such as maternity or adoptive leave, and must exercise caution in relation to employees who are on sick leave or those with health conditions. They also must not select an employee merely because they are part-time or on a fixed term contract.

In selecting the person to be made redundant, the employer must select using objective, business led grounds.

Consideration must be given to custom and practice in both the company and the industry as well as any collective agreements. If there is a practice of ‘first in, last out’ the employer must examine whether this could give rise to an allegation of ageism.

The employer must not look at the conduct or disciplinary history of employees, as warnings and other sanctions on an employee’s record are deemed as a stand alone punishment, to use them as a selection criterion also would amount to double punishment. If an employee has current conduct issues or is under investigation, it would be extremely unwise to rely on this state of affairs to determine selection.

Similarly, the employer must beware of reliance on the performance history of an employee, as this may be deemed to be subjective, in particular in the absence of objective and regular documented performance reviews.

Selection for redundancy is a tricky area and employers are advised to use transparent and objective criteria, and to take legal advice at an early stage.

Fitzsimons Redmond would be happy to guide you and your business through the redundancy process.  Please call us on 01- 6763257 if you would like to talk to us.

Lisa Quinn O’Flaherty                                                                                                                                   Solicitor at Fitzsimons Redmond