Redundancy selection
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by Douglas Ainley
REDUNDANCY cases, how nployers select the employees be made redundant is crucial
determining the fairness of imissal. Selection contrary to
I agreed procedure or custom' arrangement automatically riders dismissal unfair. Moreover, even where agreed ocedures or customary arngements are followed or lere such procedures or arigements do not exist, ernwers must still satisfy the gen31 test of reasonableness.
Initially employers must tablish that the reason for ;missal was redundancy. Tri nals have no power to investite the underlying reasons for iundancies — otherwise they suld become forums for instrial disputes. The decision make redundancies remains a anagement one based on ailable economic evidence.
5ince the legal definition of iundancy is somewhat techni I, employers who justify smissal on redundancy 3unds would often be well vised to plead in the alterna that dismissal was also justid for "some other substantial tson". Business reorganisan, supported by genuine evince, could be a valid Jbstantial" reason.
3efore the tribunal hearing, iployers should exercise their ht to request "further and bet particulars" of the dismissed iployee's case. It is sensible to 3w in advance details of why employee alleges that his ection was unfair.
ekt the hearing, employers will vays have to show that their lection for redundancy was isonable. Employers should erefore be prepared to )duce evidence which estab hes that all relevant factors ;re taken into account before ; decision was taken.
Redundancy selection will be fair only where the criteria
ed for selection by the ern3yer, or the implementation of Dee criteria, are outside the 3nge of reasonableness".
Dnce the decision to make rendancies is taken, employers nnot act arbitrarily in deciding who should go. Identifiable criteria for selection which are not manifestly unreasonable are required. Tribunals will examine the circumstances; decide what in those circumstances would be reasonable selection criteria; and decide whether the employer acted within that range of reasonable criteria.
If he has done so, he will be protected since it is not the function of tribunals to substitute their own criteria for those of the employer nor to make his selection for him.
Employers who follow a selection procedure which has been agreed with a trade union, have a definite advantage. Dismissal is rarely unfair in such circumstances, and it is sensible for employers to have a forward plan should the need for redundancies arise.
Criteria which might be considered include length of service, skills, productivity records, sickness and absenteeism records according to the needs of the company. Even where no agreement exists, employers should discuss the selection procedure with a union, or with their workforce, before implementation. If nothing else, this demonstrates reasonableness on the employer's part.
Where the dismissed employee alleges he was unfairly selected for redundancy, employers should be able to show how and in what circumstances the employee came to be dismissed and who took the decision to dismiss.
The employer's evidence should deal in detail with the selection criteria and their implementation, but he does not have to try to anticipate every possible ground of complaint the dismissed employee might raise.
Employers who can point to a selection based on an objective assessment — perhaps a "points system" geared to the employees' work performance and attendance records — will have few problems. But an employer who merely states selection was based on "management skill and judgement" will rarely succeed.