The issues set out below are a comprehensive picture of the types of things that will be relevant to whether or not a redundancy dismissal is fair within the unfair dismissal legislation.
Those with an asterisk are essential to a fair procedure from an employer’s perspective.
When it is proposed that 20 or more employees are dismissed at an ‘establishment’ within a 90 day period statutory consultation rules apply in addition to the considerations below. For a quick overview of the key issues click here.
Does the Employee qualify for the right? Does they have more than 2 years continuous service so as to be entitled to statutory redundancy pay and so as to have accrued their right to claim unfair dismissal?
Is the reason potentially fair within Section 98 (2) Employment Rights Act?
- The operative reason for the dismissal must actually be a redundancy situation and not some other reason (either another potentially fair reason, or any other reason).*
Is the statutory test for redundancy met? Is there a Section 139 Employment Rights Act 1996 redundancy situation?* In a nutshell:
- Is there a cessation or diminishment in the demand of the business for work of a particular kind? Or
- Has the employer ceased to carry out its business at the location at which the employee was employed?
Are the common law ingredients of fairness under Section 98 (4) Employment Rights Act 1996 substantially satisfied? In summary these are:
- Did the Employer warn the Employee that they were facing dismissal for redundancy?*
- Did the Employer consult with the Employee regarding the proposal to make redundancy/s ?*
- Did the Employer apply its mind to who should be included in the pool of potentially redundant employees and reach a rational decision about this?*
Was consultation undertaken?
- Consultation regarding reason for the proposal
- Consultation at as early stage as possible
- Meaningful consultation in the sense that the decision to dismiss had not already been taken*
- Consultation about the proposed pool for selection
- Consultation regarding proposed criteria
Was the selection substantively fair?
- Did the Employer adopt a fair basis upon which to select?*
- Were the criteria used fair? (i.e. can they be objectively checked? e.g. attendance, efficiency, experience, etc).*
- Were the criteria used objectively measurable insofar as reasonably possible?
- Were the criteria applied / scored fairly and properly?*
- Was the Employee given sufficient details regarding their selection to be able to properly challenge the basis for selection?*
Were alternatives explored?
- Did the Employer consider alternatives to dismissal?*
- Was redeployment considered?*
- Was there any suitable vacancy at the time of the proposal or during the notice period?
- Was the Employee notified of any vacancies and given enough information to consider their suitability?
Were other reasonable ways to reduce headcount considered?
- Voluntary redundancy
- Recruitment freeze
- Withdrawing new job offers
- Reducing agency staff
- Offering early retirement
- Reduce hours
- Pay freezes / cuts
Has the Employer followed its own redundancy procedure/s when dismissing?*
Was the Employee afforded natural justice by being given an opportunity to present their case against redundancy dismissal at a meeting, prior to the decision to dismiss having been taken?*
Was the Employee allowed to be accompanied to this meeting?
Was the Employee afforded a right to appeal against dismissal?
If the Employee appealed, was an appeal meeting held?
Was the Employee allowed to be accompanied to this meeting?
Was the appeal fair, in the sense that it considered any grounds of appeal advanced and / or undertook a fair review of the case for dismissal?
Does the size and administrative resources of the Employee require a higher standard of fairness than might otherwise be the case?