re Employment Act 1980 vi k, L Alternative employment, 1 by Douglas Ainley
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kNY DISMISSAL, employers a satisfy the test of reasonness and for redundancy lissals, paragraphs 44-46 of 1972 Industrie Relations le of Practice, provides lelines. These are not law they are taken into account ribunals when deciding the less of dismissals.
le Code recognises that it is agement's responsibility to rmine the workforce's size -ecommends that, unless exional circumstances exist, ignificant reductions should lade without consultation. anagement should have a :y on redundancy, estab1:1 in advance, and where reiancies seem likely, means foiding them should be ex These include restricting Jitment; retiring over-age loyees; reducing overtime; ducing short-time retrainnd transfer of employees. Iployers should give adee warning; consider volry redundancy, retirement transfer schemes; establish h employees are to be iissed and in what order; ide assistance in finding al'five work; and ensure no icity until employees and ins are fully informed. afore, redundancy dismismay be unfair where emers fail to consult em)es affected or fail to make )nable efforts to find them -iative work.
; good practice to consult or -1 individual employees t proposed redundancies tribunals will always take nto account. But it is only actor. The circumstances of
case are important and e to consult does not by make an otherwise fair ssal unfair. Failure to con)nly makes a redundancy ssal unfair where a tribunal es that prior consultation have meant that a reason employer would have ed a different decision.
question is whether, after 'Ration, the reasonable emr would have altered his on to dismiss for redun dancy. If nothing the employee might have said could have changed the employer's mind, failure to consult is less relevant. If consultation could not have produced alternative solutions, lack of prior consultation does not make dismissal unfair.
Tribunals decide whether failure to consult would have made a difference and what that difference would have been — short-time working to avoid redundancies may, for instance, be a possibility.
Initially, the burden of proving failure to consult and the difference it would have made rests on the employee. The burden then shifts to the employer to rebut the employee's case. Redundancy dismissals have been unfair where employers over-estimated the effect of planned cut-backs or failed to consider re-arranging working hours. Had prior consultation occurred these factors would have been brought out and have obviated the need for some redundancies.
When employees allege that failure to consult would have made a difference, employers should have evidence available to refute this. Employers are entitled to request particulars of the employee's case. Equally employees can request particulars from employers of any realistic alternatives to redundancies which existed.
The Code of Practice recommends that employers consult with employees' representatives before redundancies are implemented and, under Part IV of the 1975 Employment Protection Act, employers have a statutory duty to consult any recognised trade unions. However, that an employer consults with a union about proposed redundancies is not a substitute for consultation with individual employees: they should still be consulted. Similarly, failure by an employer to consult with a union will not make an individual employee's dismissal unfair unless such consultation would have made a difference and saved the individual employee's job.