The Unfair Dismissals Acts, 1977 to 2015 provide that a dismissal of an employee shall be deemed for the purposes of the Acts, not to be an unfair dismissal, if it results “wholly or mainly” from the redundancy of the employee. Redundancy may therefore be an absolute defence to a claim for unfair dismissal, but the employer must strictly adhere to the definition of redundancy if the Employment Appeals Tribunal (EAT) is to hold in its favour. Redundancy defences will be closely scrutinised by the EAT. Where an employee has been dismissed on redundancy grounds and believes that it was not a valid redundancy, or the manner in which the dismissal was effected was unfair or unreasonable, or that he was unfairly selected for redundancy, provided that he/she has, in most circumstances, at least twelve months continuous service, he/she will be entitled to bring an application before the EAT for unfair dismissal.
Section 6(4) of the Unfair Dismissal Act 1977 provides for grounds in which dismissal will be presumed fair which can be summarised as follows:-
- The employee lacks competence;
- Employee misconduct;
- Contravention of the law
When invoking these grounds the employer has a number of obligations which may be summarised as follows:-
- Advise the employee of the issues;
- Provide the employee with an opportunity to rectify the situation;
- Warn the employee of the consequences if they fail to meet these requirements;
- Invoke a warning against them if the situation does not improve. Regarding the warning system the employer should follow their own procedure as set down in the employee’s contract or in the employee handbook. Generally at a minimum this procedure should encompass at least one oral warning, followed by a written warning, a final written warning and then dismissal. The employer should also request a meeting with the employee and he should be advised that he is entitled to be represented and given the opportunity to respond fully.
For an employer, it is important to create a bank of correspondence evidencing the employer’s compliance with fair procedures in reference to the Redundancy Acts and Unfair Dismissal legislation. The ability to point to a paper trail of how the decision to carry out redundancies or effect a dismissal of an employee was arrived at can prove invaluable at a later date.
Derek Walsh, Solicitor at Keating Connolly Sellors, can be contacted at [email protected] or by telephone on +353 (0)61 414 355 or +353 (0)61 414 353.
The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.