Complainant

Respondent

Anonymised Parties

Researcher

Employment Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013945-001

14/09/2017

The researcher\complainant was employed by the respondent on Jan. 18th, 2016 and made redundant on March 15th, 2017 (with effect from March 24th, 2017). The respondent claims that this (redundancy) was necessitated by a decline in business activity. The complainant alleges that the redundancy\dismissal decision was motivated by her response to unsatisfactory working conditions arising from a renovation of the building\workplace.

The complainant contends that she was dismissed because she made a ‘Protected Disclosure’ to her manager regarding health and safety conditions in the office.

In the run-up to being told that she was being made redundant (i.e. from around the middle of Feb. 2017), there was construction work going on in the office. On occasion the staff had been allowed to work from home during the building work, but for the most part staff were in the office. The conditions were difficult (e.g. sometimes there was no access to toilets, kitchen). Though the complainant was certainly not the only researcher complaining about the conditions in the office, she was the only one to initially take up on the offer to work from home.

The Managing Director apologised to staff, noting that she had no idea the conditions were so bad. However, the complainant alleges that she reprimanded management for extending to staff the option of working from home.

On Wednesday, 15th March, the researcher received an invite to meet with management, who then advised that she was to be made redundant. She was not the most recently recruited staff member\researcher. Ms. C. is the most recently recruited researcher and she is now a Senior Researcher (which the claimant had been told was to be the next step for her). The claimant was told that her performance was not in question and she had consistently received excellent feedback. She alleges that she was unfairly selected for redundancy.

The reason she believes that she was dismissed unfairly was due to making a ‘Protected Disclosure’. The company was not in a redundancy situation and had taken on two new permanent staff in January 2017 (including a researcher).

The claimant advises that she has endured no financial loss arising from the dismissal\redundancy.

At hearing, the respondent explained that the company treated staff well and that the redundancy was necessitated by a decline in business. The claimant was selected on the LIFO basis and advised of the decision on March 15th, 2017. Neither options nor the construct of a redundancy matrix were considered by the respondent. She also acknowledges that at the time of the redundancy, the working conditions were ‘pretty grim’ – hence, staff were allowed to work from home. Ms. C., who was recruited as a researcher\consultant after the claimant, was not made redundant and still works with the company (as a Senior Researcher). The respondent contends that there was no animosity toward the claimant, she was paid for an extra month and given an excellent reference. With regard to subsequent recruitment, the respondent explained that this was associated with a process of restructuring of the researchers in the Philippines.

There is extensive case precedent underlining the importance of fair procedure when selecting staff for redundancy. Case law confirms that in any move to make staff redundant clear communication is crucial. That is, in defending a claim for unfair dismissal in respect of a redundancy situation, an employer should be able to prove that the employee facing redundancy was kept fully appraised of developments. Related thereto, staff should be encouraged to come forward with their own ideas as to how the business can be run more efficiently. For example, (at least) two Employment Appeals Tribunal cases reinforce the merit of this approach. In the 2008 Park Developments case (UD 950/2008), the Tribunal noted that ‘no consideration was given to temporary layoff or short week options’. At around the same time, the Vintners Federation of Ireland was cautioned by the Tribunal, as it ‘did not give any genuine consideration to the proposals put forward by one of the claimants to reduce costs’(UD 787/2007). Employees should be selected for redundancy using objective, fair and reasonable criteria. Section 5 of the Redundancy Payments Act 2003 states that the ‘objective’ nature of redundancy should arise ‘for one or more reasons not related to the employee concerned’ (i.e. the ‘impersonality’ factor). In the absence of such ‘objectivity’, employees may successfully claim that they were ‘singled-out’ when other positions might have been deemed to be equally at risk, or that the criteria applied in the selection process were unfairly biased against them. In such scenarios, the importance of fair procedures and of selecting employees for redundancy based on objective criteria - which should be communicated to the employees concerned – are of importance. Whilst it may be possible to use different criteria for different areas of a business, the onus is on the employer to show that there were objective reasons for doing so. Notably, no consultation process was applied in this case, as the claimant was presented at her meeting with a ‘fait accompli’ (by management, on March 15th, 2017). Regarding the application of the LIFO principle in redundancy scenarios, given that Ms. C.’s employment offer – which materialised after the claimant had been recruited was (also) for the role of ‘Researcher’ (at least initially), it can be argued that the strict application of this principle does not appear to have been applied. Legally defensible selections for redundancy are frequently made using a ‘skills matrix’. This is a method by which an employer sets out the skills needed to allow the business continue as a going concern. The skill set of each employee is then measured in an impartial manner and assessed vis-a-vis the predetermined criteria\skills. Those who score highest vis-a-vis the set criteria are retained. The bottom line is that the matrix must ensure an unbiased assessment of each employee against objective, consistent and appropriate criteria - in a manner that is free from bias and justifiable by reference to documentary evidence. The criteria and weightings used are not set in stone, but should also be defensible vis-a-vis the employer’s business needs. No such matrix or process was devised in this case.

Notably the claimant acknowledges that she endured no financial loss arising from the dismissal. If it transpires that one has no actual loss, because they took up other employment immediately after the dismissal, they are entitled to token compensation of 4 weeks' pay.

CA-00013945-001 – The claim is upheld and an award of €2,000 is made, to be paid to the claimant inside 42 days.

Redundancy selection; dismissal.

Complainant

Respondent

Parties

Fidelma Mcgeachy

Sri Executive Search Limited

Complainant

Respondent

Anonymised Parties

Researcher

Employment Agency

Representatives

None

None

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013945-001

14/09/2017

The researcher\complainant was employed by the respondent on Jan. 18th, 2016 and made redundant on March 15th, 2017 (with effect from March 24th, 2017). The respondent claims that this (redundancy) was necessitated by a decline in business activity. The complainant alleges that the redundancy\dismissal decision was motivated by her response to unsatisfactory working conditions arising from a renovation of the building\workplace.

The complainant contends that she was dismissed because she made a ‘Protected Disclosure’ to her manager regarding health and safety conditions in the office.

In the run-up to being told that she was being made redundant (i.e. from around the middle of Feb. 2017), there was construction work going on in the office. On occasion the staff had been allowed to work from home during the building work, but for the most part staff were in the office. The conditions were difficult (e.g. sometimes there was no access to toilets, kitchen). Though the complainant was certainly not the only researcher complaining about the conditions in the office, she was the only one to initially take up on the offer to work from home.

The Managing Director apologised to staff, noting that she had no idea the conditions were so bad. However, the complainant alleges that she reprimanded management for extending to staff the option of working from home.

On Wednesday, 15th March, the researcher received an invite to meet with management, who then advised that she was to be made redundant. She was not the most recently recruited staff member\researcher. Ms. C. is the most recently recruited researcher and she is now a Senior Researcher (which the claimant had been told was to be the next step for her). The claimant was told that her performance was not in question and she had consistently received excellent feedback. She alleges that she was unfairly selected for redundancy.

The reason she believes that she was dismissed unfairly was due to making a ‘Protected Disclosure’. The company was not in a redundancy situation and had taken on two new permanent staff in January 2017 (including a researcher).

The claimant advises that she has endured no financial loss arising from the dismissal\redundancy.

At hearing, the respondent explained that the company treated staff well and that the redundancy was necessitated by a decline in business. The claimant was selected on the LIFO basis and advised of the decision on March 15th, 2017. Neither options nor the construct of a redundancy matrix were considered by the respondent. She also acknowledges that at the time of the redundancy, the working conditions were ‘pretty grim’ – hence, staff were allowed to work from home. Ms. C., who was recruited as a researcher\consultant after the claimant, was not made redundant and still works with the company (as a Senior Researcher). The respondent contends that there was no animosity toward the claimant, she was paid for an extra month and given an excellent reference. With regard to subsequent recruitment, the respondent explained that this was associated with a process of restructuring of the researchers in the Philippines.

There is extensive case precedent underlining the importance of fair procedure when selecting staff for redundancy. Case law confirms that in any move to make staff redundant clear communication is crucial. That is, in defending a claim for unfair dismissal in respect of a redundancy situation, an employer should be able to prove that the employee facing redundancy was kept fully appraised of developments. Related thereto, staff should be encouraged to come forward with their own ideas as to how the business can be run more efficiently. For example, (at least) two Employment Appeals Tribunal cases reinforce the merit of this approach. In the 2008 Park Developments case (UD 950/2008), the Tribunal noted that ‘no consideration was given to temporary layoff or short week options’. At around the same time, the Vintners Federation of Ireland was cautioned by the Tribunal, as it ‘did not give any genuine consideration to the proposals put forward by one of the claimants to reduce costs’(UD 787/2007). Employees should be selected for redundancy using objective, fair and reasonable criteria. Section 5 of the Redundancy Payments Act 2003 states that the ‘objective’ nature of redundancy should arise ‘for one or more reasons not related to the employee concerned’ (i.e. the ‘impersonality’ factor). In the absence of such ‘objectivity’, employees may successfully claim that they were ‘singled-out’ when other positions might have been deemed to be equally at risk, or that the criteria applied in the selection process were unfairly biased against them. In such scenarios, the importance of fair procedures and of selecting employees for redundancy based on objective criteria - which should be communicated to the employees concerned – are of importance. Whilst it may be possible to use different criteria for different areas of a business, the onus is on the employer to show that there were objective reasons for doing so. Notably, no consultation process was applied in this case, as the claimant was presented at her meeting with a ‘fait accompli’ (by management, on March 15th, 2017). Regarding the application of the LIFO principle in redundancy scenarios, given that Ms. C.’s employment offer – which materialised after the claimant had been recruited was (also) for the role of ‘Researcher’ (at least initially), it can be argued that the strict application of this principle does not appear to have been applied. Legally defensible selections for redundancy are frequently made using a ‘skills matrix’. This is a method by which an employer sets out the skills needed to allow the business continue as a going concern. The skill set of each employee is then measured in an impartial manner and assessed vis-a-vis the predetermined criteria\skills. Those who score highest vis-a-vis the set criteria are retained. The bottom line is that the matrix must ensure an unbiased assessment of each employee against objective, consistent and appropriate criteria - in a manner that is free from bias and justifiable by reference to documentary evidence. The criteria and weightings used are not set in stone, but should also be defensible vis-a-vis the employer’s business needs. No such matrix or process was devised in this case.

Notably the claimant acknowledges that she endured no financial loss arising from the dismissal. If it transpires that one has no actual loss, because they took up other employment immediately after the dismissal, they are entitled to token compensation of 4 weeks' pay.

CA-00013945-001 – The claim is upheld and an award of €2,000 is made, to be paid to the claimant inside 42 days.

Redundancy selection; dismissal.