Rolanda: Okay. We were talking earlier about redundancy, or retirement, and we're just going to look a wee bit at redundancy. This is the question that came in this week, "Employers often have difficulty how to select people for redundancy, and sometimes use competition." So the question is,

"When an employee poses a risk of redundancy, can you turn someone down for a redeployment option, following a formal interview process, if they do not pass the interview?"

Seamus: Yeah. This is the idea where, essentially, you have a redundancy process. The employer really has two options that they're pulling together in the employees that might be affected by the redundancy. You know, they'll either do it one of two ways. They'll either say, "We're going to conduct a process whereby we apply criteria in relation to our affected employees," . . .

Scott: Some kind of matrix?

Seamus:  Yes. " . . . and we'll work through that on the basis of retaining our best staff through objective criteria, as much as possible." The other way that employers can do it sometimes is they'll say, "Look, you know, we are reducing our numbers, and we're going to have four available positions, and there's eight of you, so we're going to conduct interviews. You can apply for these roles if you wish."

Some employees might voluntarily decide not to apply. But, "You can apply for the role if you wish," and you either pass or fail the interview with that process.

Scott: So, going back to the poll, there were about 40% of the people listening today would use that process. These are for a reason, because presumably it's on the face of objective and easier to do than a matrix that you have to do.

Seamus: In some ways, it allows the employer a little bit more flexibility than the matrix whenever they're going through the interview process, because it allows the employer really to test in terms of retaining the best employees going forward, is the idea behind it.

But, you know, ultimately, there is always an obligation on the employer, at redundancy, to look at redeployment. How that comes around, if there's an alternative suitable role that's available, you know, the employer is obliged to say to the employee, "There's a role there that you are entitled to have, because we're avoiding redundancy here."

But where there's a number of employees and there's only one role, the fair way is to open it up for competition. So, you're going to have winners and losers when it comes to those aspects.

Scott: That's assuming, of course, that there isn't already some kind of right to matrix in there. Because if I'm being made redundant, I've been told there's a matrix, and it's based on my attendance, and it's based on whether I've been disciplined, and it's based on whether I've reached a certain number of qualifications, and so on. Well, that might protect me.

So you come along and say you're going to interview me now, and I'm going to go, "Now, hold on a second. My contract says that you have to follow this. I'm filing a claim if you get rid of me." On the other hand, I suppose, if there's nothing there, the employer, assuming there are trade unions, or, indeed, if there's more than 20 people going, they're going to have to consult with the workforce on the best way to try and achieve that. So there may be some kind of negotiation or consultation in that.

But let's assume that you've got something in your contract, or you've got some kind of precedent that's been used often, that you're using some kind of interview process in this thing. Is it reasonable?

Seamus: I think, in the majority of circumstances, it is reasonable. Whether it's 100% fair or not is another idea. But I think that it is the standard that a lot of employers do use, so I wouldn't be over-critical of it. I certainly have advised it in the past myself. The other aspects of it are that, really, what you're saying is, "Is this employee suitable for this role that I have? I'm not quite sure, so I'm going to look at doing the interview process for it instead."

It's back to the point of, you know, "You should always be sure that your employee is suitable for the role, and you should be confident in that." If you've properly managed them during their employment, the answer should be that they should be. As employers deal with things in certain ways, and maybe they have objectives, and models, and things like that as well, this may be one of the models that they use.

Certainly, if there's a formal interview process, you absolutely need to go back to the basics of making sure that there's a procedure in place for it, that it's documented and it's recorded.

Scott: That you've trained the interviewers.

Seamus: Yes. And, you know, that if you are taking a shoddy process in terms of doing this, in order just to get rid of somebody, and you are acting unfairly, it's potentially going to catch up with you if it's not documented.

Rolanda: I suppose, in portion, I have a tendency to use it in situations where, yes, there's a reduction in roles, but perhaps created new roles, you know, they have combined roles . . .

Seamus:  Thinking of restructure or . . . ?

Rolanda:  . . . or might feel a bit more appropriate to use an interview. But, as we were saying, it would be sort of unfair to just thrust it upon people without some sort of preparation, particularly if you have people who have been employed for 20, 25, maybe more, years and haven't had an interview in 20, 25 years. So, an employer who's going to take that approach should try and create a level playing field by ensuring that everyone is prepared.

Seamus: I think that's right. As Scott said, I think there should be something in the policy, procedure, or the contract about it. Or, if there's a precedent that's happened before about it, it's worthwhile for employers to be aware that, if they've had longstanding employees for 25, 30 years who haven't done an interview, it can be very daunting and very worrying for them, and you might need to look at levelling the playing field in terms of offering training, or some sort of interview skills, or practice runs, and things like that.

Scott: Yeah, there's a pretty good chance there that you're going to end up with a discrimination claim. Because the ones that would be the least good at interviews are likely to be the older workers, because they will have had fewer interviews. You're going to have people who, even if you use the matrix, have been off for a while. You're going to end up with maternity issues, or disability issues, or something like that.

The one bit of advice I tell anyone that comes to Legal-Island about redundancy is, "Do a non-ET1 through the LRA" You can never get redundancy selection right, unless you're closing the place, and then you've still got to get your consultation right. But, you know, "Do some kind of an agreement, whether it's a compromise or a non-ET through the LRA," because you're just not going to get it right.

Seamus: There's too many holes that you can pick in those circumstances, and we've all been there with them. We've dotted our Is and crossed our Ts the best that we can, and something comes out of the woodwork that you weren't expecting on individual circumstances. So absolutely, I agree. The facility is there to do it and use it, so why not?