“The employer will normally not act reasonably unless he warns and consults any employees affected or their representatives, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redevelopment within his own organisation.”
So said Lord Bridge speaking about unfair dismissal in the case of redundancy in the English House of Lords decision in Polkey v A. E. Dayton Services Ltd 1988.
In that case the court endorsed the guidelines outlined by Broome-Wilkinson J. in the case of Williams v Compair Maxam Ltd (1982) and previously set out in this column.
Those guidelines spoke, among other things, to consultation with the union on the best means by which the redundancies could be effected and as well the need to ensure that the selection of those for redundancy is made fairly.
The court emphasised the need to ensure that the selection was not made on personal whim.
It is partly for this reason, I think, that the Employment Rights Act requires the employer to supply the employee or the trade union recognised for bargaining on behalf of the employee, with a written statement of the reasons for and other particulars of the dismissal.
The act mandates as well that the written statement should contain the number and categories of affected employees and the period during which their dismissals are likely to be carried out.
The act stipulates that where the dismissal of an employee is based on redundancy and the statutory consultations are carried out the dismissal does not contravene the right not be unfairly dismissed.
It would seem, therefore, that where the provisions requiring consultation and a fair selection are breached that these can form the basis of an action for unfair dismissal.
The NCC imbroglio would seem to have provided the ideal opportunity to test the relevant provisions of the Employment Rights Act relating to collective redundancies. It is hoped that this opportunity is not missed.
This article was written prior to the Prime Minister’s announcement that the Employment Rights Tribunal would be asked to adjudicate on the matter.
The Employment Rights Tribunal has a very important role to play in ensuring that if employees are not treated fairly, the redress available to them under the act is given to them expeditiously.
One unintended consequence of the confusion with respect to the NCC lay-offs may well be that it may kick-start the adjudication process with such force that the Tribunal would be up and running in such a way that it can efficiently begin to deal with the other challenges with which it will be confronted as adjudicator on claims initiated under the act.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.
