The downturn in the economy has led many employers to reconsider their staffing requirements and to seek to introduce changes in the workplace to ensure maximum efficiency. Accordingly, issues such as employee attendance, conduct and performance are likely to be subject to more critical scrutiny than previously as employers consider who to promote as part of an organisational restructuring and/or who to select as part of a redundancy programme.

Sick days, be they genuine or otherwise, cost the Irish economy millions of euro every year. When redundancy rears its head, many employers may be tempted to use the existence of the redundancy situation as an opportunity to remove individuals with high levels of absenteeism from the business in an effort to reduce cost. While this is an understandable reaction it may not be legally permissable.

The manner in which employees are selected for redundancy is extremely important. Under the Unfair Dismissals Acts 1977-2007, even in circumstances where a genuine redundancy situation exists, an employee who is unfairly selected for redundancy will succeed in an unfair dismissal claim. As a general rule, selection criteria should not be based on subjective assessments of the employee. The employer must be in a position to establish that an employee was fairly selected for redundancy on the basis of independent, objective and verifiable criteria. An employee's attendance record is one such objective criterion.

If the reasons for selection relate to faults on the part of the employee it will be difficult for an employer to justify selection where those faults have not been brought to the attention of the employee and the employee has not had an opportunity to address such faults. Accordingly, if the employer has issues in relation to an employee's performance, conduct or attendance records, such issues ought properly be addressed through the employer's disciplinary procedure rather than through redundancy.

It is important that all employers maintain a consistent approach to documenting and monitoring employees' attendance records in an attempt to avoid a claim for unfair treatment.

If the employer decides that attendance records will form one of the selection criteria then it should look at the reasons why an employee has been absent rather than just determine the simple fact of the absence or its length. A failure to do so might well render the dismissal unfair. Similarly, it is generally advisable that employers take more than one selection criterion into account.

What is fair in one case may not be fair in another and much will turn on the facts of each particular case.

The Employment Equality Acts prohibit employers from discriminating on nine distinct grounds (gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveller community). Employers should exercise caution when using absence records as a selection criterion and should ensure that frequent absences have not been caused by an ongoing disability or illness as otherwise the selection could be open to a claim for discrimination under the Acts. The definition of "disability" under the Employment Equality Acts is quite broad and covers most illnesses. Similarly, if the employee had taken maternity, adoptive or parental leave, a decision to dismiss solely on the basis of the employee's attendance record would be likely to constitute an unfair dismissal and indeed also be discriminatory on the grounds of gender and/or family status.

In the case of Department of Defence v An Employee (CPSU), a clerical assistant in the Department was refused promotion on the basis of her sick leave record which placed her over the sick leave limit for promotion. Some of the absences were due to pregnancy and pregnancy related illness and the claimant applied to have those incidences of sick leave removed from the sick leave record that was being considered for promotion purposes. One pregnancy related incidence of sick leave was not removed from the record and as a result, the claimant was prevented from entering the promotion competition. The Equality Officer found that the claimant was subjected to direct discrimination on the grounds of sex and awarded the claimant compensation for loss of opportunity to progress her career and for distress and anxiety.

The employee's attendance record is just one of the many factors to be considered when short-listing employees for promotion or redundancy. It is critically important that employers are capable of objectively justifying their decision either to promote or make an individual redundant by criteria which are clearly measurable. However, in using attendance as a selection criterion, more than a simple 'box ticking' exercise is required. The employer must review and question each individual's attendance record as failure to do so could result in potential claims against the employer for unfair dismissal and/or discrimination under the Employment Equality Acts.

For further information please contact Aoife Bradley.

September 2009.