Criteria for selection of employees for collective redundancies

If an employer decides to dismiss a larger group of employees and has to apply the Act on Special Rules for Termination of Employment Relations with Employees for Reasons not Applicable to Employees, that employer is obliged to notify in writing the company trade unions or employee representatives (in case there are no company trade unions) of, among other things, the proposed criteria for selecting employees for collective redundancies.

No legislation contains a list of such criteria, leaving it to the employer to decide on them. It is, however, important that the employer should not be guided by complete freedom when selecting persons for dismissal; the employer is obliged to prove that objective and fair criteria for selecting an employee for dismissal were applied and all employees affected by the reasons for forcing the employer to terminate the employment relationship were taken into account. The Supreme Court noted that the established criteria for selecting employees for dismissal should be applied equally to all employees and any deviations from the adopted rules require convincing justification (Supreme Court judgement of 1 June 2012, ref. No. II PK 258/11).

It is understood that the employee’s suitability for the workplace is decisive in determining the criteria for dismissal. In the judgement II PK 258/11, the Supreme Court indicated that: The employer has the right to determine criteria for the selection of employees to be made redundant within the framework of collective redundancies, which make it possible to select employees with the characteristics (competences, predispositions, skills) desired by the employer. Such an assumption has a rational justification as the activity of a given employer is oriented mainly on profit. The material and family situation of the employee should also be included in the list of criteria for selecting employees for dismissal, but these will be ancillary. Undoubtedly, an employer cannot use discriminatory criteria, such as gender, age, race, religion, party or trade union membership.

Taking into account the aforementioned assumptions, the employer may apply, among others, the following criteria:

• competence, qualifications,
• educational background,
• employment history to date,
• seniority,
• frequent absences,
• acquisition of the right to a pension,
• personal situation of the employee.

It is worth noting that the termination of an employment contract against the established criteria constitutes a violation of the provisions on termination of employment contracts. In such a situation, the employee is entitled to claims provided for in the Labour Code in case of termination of employment contract, which is not justified or is breaching the provisions on termination of employment contracts.

Marta Strzecha-Bociąga, attorney-at-law