Deciding what factors to consider when determining redundancy selection can be a difficult task for employers. In the recent case of Roy Robert Hillerby v Castle Engineering & Construction Company Ltd, the Northern Ireland Industrial Tribunal held that employers are entitled to take into consideration a subjective set of criteria.
Mr Hillerby brought a case against his former employer, Castle Engineering & Construction Company Ltd (CECC) arguing that he was unfairly dismissed as a result of an unlawful selection for redundancy. He also claimed entitlement to notice pay arising from an alleged failure by CECC to provide him with sufficient warning that his employment was to be terminated on the ground of redundancy.
Mr Hillerby worked as a security guard for CECC. His employer was advised that the number of security officers would be reduced at its client premises, they advised Mr Hillerby of this and that redundancies would be inevitable.
In an effort to avoid staff redundancies, the security staff were consulted in January 2016 and CECC asked them to agree to reduced hours. CECC also invited suggestions from the security staff as to how to avoid redundancies. The security staff were then put on three months’ notice by CECC as a precautionary measure in anticipation of its client suddenly announcing its plans. Mr Hillerby, by virtue of his length of service would automatically be entitled to receive three months’ notice.
All security staff later received confirmation that the redundancy selection process would be commencing. CECC determined that only four staff were required, placing up to seven jobs at risk of redundancy.
In commencing the redundancy selection process, CECC drew up a list of criteria to be applied when considering each individual employee. The list was in two parts:
The first list consisted of four headings, namely length of service; attendance; lateness; and discipline. Each of these headings contained a number of components, each progressively ranked to attract more or fewer marks, depending on the employment record of the individual employee.
The second list of the criteria was headed ‘subjective criteria’, and its categories were under the broad heading of "capability and performance". These categories were work performance; co-operation/commitment; flexibility; ability to perform as a team player; motivation; current skill base; and experience. As before, there was a sliding scale for these criteria.
It was decided that Mr Hillerby should be selected for redundancy as a result of applying both the "objective" and "subjective" criteria. In doing so, he had marks deducted for a number of incidents of difficult behaviour and attitude in the recent past. CECC had also decided not to have regard to any staff appraisals or to disciplinary proceedings more than a year before the redundancy assessments.
The Tribunal was satisfied that CECC had applied fair and appropriate criteria in a reasonable manner and as such, the claim of unfair dismissal was unsuccessful.
This decision reiterates the case law that subjectivity in redundancy selection ought not to be considered a "dirty word".
The Industrial Tribunal here noted that the inclusion of a subject set of criteria, clearly segregated from the objective criteria, was a necessary and logical addition to the criteria document. The fact that the business was relatively small in size and the similarity of non-technical roles heightened the need for the subjective criteria, to allow CECC to consider factors such as commitment and motivation amongst more objective factors.
This decision will be welcomed by employers as it allows subjective criteria to be used to measure the skillset of an individual employee when undertaking a redundancy selection. Employers should always seek specialist legal advice before taking any decision to dismiss an employee as the costs in terms of legal fees and management time can be significant for a business.
Maxine Orr is a Partner in Worthingtons Commercial Solicitors, specialising in Employment Law.