In a recent decision of the Workplace Relations Commission (“WRC”) in Gareth Elliot v Legs Eleven Limited...

In a recent decision of the Workplace Relations Commission (“WRC”) in Gareth Elliot v Legs Eleven Limited (ADJ-00050223), the Complainant claimed that his dismissal for reason of redundancy was unfair. The Complainant argued that the Respondent had not taken into consideration other roles which he could have done. The Respondent rejected the claim.

Facts: The Complainant was employed as a digital marketing executive in September 2021 and was promoted to the role of content marketing manager 6 months later. His role was to manage communications with prospective clients, search engine optimisation (SEO) and managing the social media content. He worked from his home in Amsterdam.

On 9th November 2023, the Respondent’s General Manager, Mr Stephen Kelly, met with the Complainant and informed him that his position was at risk of redundancy due to commercial struggles, as there had been consecutive losses between August and October 2023. Evidence given by Mr Kelly was that the Complainant’s role was selected due to the leadership opinion that it was not generating revenue and that paid social media was a better option compared to content management.

Following the meeting on 9th November, the Complainant emailed Mr Kelly and asked him to consider an alternative to redundancy, knowing that a social media marketing manager had recently been hired in September 2023. In his evidence, Mr Kelly stated that the Complainant did not have the requisite experience in paid social media and had never shown skills in targeted advertising or advertising campaigns. Mr Kelly further stated that after consideration of the Complainant’s CV, he did not envisage the Complainant taking on a social media marketing manager role as it was more than just marketing. He also stated that the company did not have the time to provide training for the Complainant in the new social media role. On 16th November, the Complainant was notified on a video call that his role was being made redundant and his employment would terminate on 30th November. This was confirmed in writing.

Under cross examination, Mr Kelly confirmed that a further social media manager was hired subsequent to the Complainant being made redundant. Mr Kelly told the WRC that the vacancy had arisen after an internal move – the social media roles are based on “regions” and one of the social media managers moved to an international position. He also confirmed that a freelance videographer was hired in October 2023, to do on-street videos and comic pieces which were uploaded to social media sites by the manager.

Mr Kelly confirmed that there were no performance issues with the Complainant, who had met his targets but stated that the company focus had shifted to social media rather than Google analytics or email marketing.

The Complainant gave evidence that he had worked in paid advertising in the first six months of his employment with the Respondent and outlined that he was one of the longest-serving employees with transferable skills. The Complainant stated that he believed that he was unfairly selected for redundancy, with others like his manager now doing parts of his role. He believed that he was more skilled than others hired after him and no effort was made to slot him into a different role.

Decision: The Adjudicator, Catherine Byrne, considered the Complainant’s complaint under the Redundancy Payments Acts 1967-2014 (the “RP Act”) and the Unfair Dismissals Act 1977-2015 (the “UD Act”).

Under section 7(2)(c) of the RP Act,

“…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to –

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]”

The Adjudicator stated that from Mr Kelly’s evidence, the number of employees working for the Respondent had decreased from 15 to 8 during the period between November 2023 and the date of the hearing in May 2024. Furthermore, certain parts of the Complainant’s role were no longer carried out, with other parts being carried out by a freelance videographer and the Complainant’s former manager. On that basis, the Adjudicator was satisfied that a genuine redundancy situation existed.

The Adjudicator then considered whether the process that resulted in the Complainant’s redundancy was unfair and whether it was unreasonable for the Respondent to select the Complainant for redundancy and not for the role of social media marketing manager.

The Adjudicator referred to section 6(7) of the UD Act and stated that an adjudicator must have regard to;

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and 

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The Adjudicator stated that no evidence was submitted regarding the existence of any company procedure for implementing redundancies. In the absence of same, fair procedures must be applied, to include the right to notice, the right to be represented at meetings, the right of response to a decision to make an employee redundancy, and the right of appeal.

The Adjudicator found that with some training and support, an employee whose job is redundant may be suitable for a different job:

“A job may be eliminated, but the employee may be capable of doing a different job or, they may be capable of doing the same job in another part of the organisation.”

Referring to subsections (2A) and (2B) of section 15 of the RP Act, the Adjudicator noted the provision for a trial period for an employee to consider if an alternative job is suitable. The Adjudicator stated that in her view the objective of the subsections is to avoid the dismissal of an employee by permitting him/her to try out another role even if it  is not a “direct match” .The Adjudicator noted that if an employee whose job is at risk of redundancy requests to take on another role, “it is incumbent on an employer to consider that request.”

Section 15 (2A) and (2B) set out the following:

“(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

(2B) Where -

(a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.”

The Adjudicator concluded that while the Complainant’s role was redundant, his dismissal was unfair for two reasons. Firstly, the Respondent made “no effort” to avoid the Complainant’s dismissal. The Complainant should have been re-deployed and permitted to try out the role as social media marketing manager (which he had requested) for a trial period. In so finding, the Adjudicator was cognisant of the fact that the Complainant was an experienced marketing executive, and that the alternative role was also related to marketing, albeit a different aspect. His performance would then have been subject to review to consider whether he was suitable in the long-term or following an unsatisfactory review, whether he should be made redundant at that point.

Secondly, the Adjudicator found that the process leading to the Complainant’s dismissal was not consistent with a “standard” redundancy procedure. She noted the very short period between the Complainant being put at risk of redundancy, and his redundancy being confirmed a week later. She also noted that the Complainant was not informed of his right to be accompanied or represented at the meetings and he was never advised of any appeal process. The Adjudicator commented that the process may have been slowed down if the Complainant had been in receipt of support, the effect of which may have been that a different decision could have been reached.

The Complainant started in a new role on 24th January 2024. On that basis, the Adjudicator deemed compensation to be the most appropriate redress, and she awarded €5,400 to the Complainant, equivalent to eight weeks’ gross pay (his loss of earnings for the period he was out of work).

Takeaway for Employers: This decision emphasises the importance of adhering to fair procedures in the context of a redundancy process. It is in keeping with the trend in other recent decisions which place significant focus on the obligation on employers to consider alternatives to avoiding redundancies.

The Adjudicator appears to go a step further in this case by referring to section 15 (2A) and (2B) of the Redundancy Payments Acts. Section 15 relates to circumstances in which an employee may be disentitled to a statutory redundancy payment for refusing to accept alternative employment. Subsections 15(2A) and (2B) enable employees to try out an alternative role without losing the entitlement to a redundancy payment purely for having tried out the alternative role. It remains to be seen whether the Adjudicator’s line of reasoning in this regard will be followed in subsequent decisions. However, either way it is imperative that employers ensure that proper and adequate consideration is given to all alternatives to redundancy, particularly in circumstances where there is a similar role available which an employee regards as a suitable alternative and which is not significantly different from the role that he/she has been carrying out or has previously carried out.

Links ADJ-00050223 - Workplace Relations Commission

Authors – Ethna Dillon and Jenny Wakely