Redundancies and discrimination — helping you avoid the pitfalls
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The HR Leader recently spoke with workplace relations and safety expert Michael Byrnes about redundancies.
The Swaab partner shared his insights on some of the things employers need to be mindful of regarding redundancies, including avoiding discrimination.
Discussing the potential for discrimination in redundancy processes, Mr Byrnes said:
“Age is certainly one ground of discrimination. Of course, carers’ responsibilities, pregnancy … these are other grounds as well. As well as all other grounds, but it tends to be age, tends to be pregnancy and carers’ responsibilities. They tend to be the areas that particularly arise in the context of redundancies.”
Mr Byrnes explained why thinking about redundancy in terms of the individual rather than the role is a “big mistake”. He commented: “They look at the person and they say, ‘We'll make them redundant.’ That's often the language that's used as well reflecting that. And of course, that analysis is completely wrong. It's the position that's redundant.”
If a position held by someone older is being considered for redundancy, Mr Byrnes clarified: “That doesn't mean you can't make their position redundant, but it means you should be alive to the possibility of them arguing discrimination in relation to that.”
Delving into age discrimination, Mr Byrnes stated: “There is a tendency for employers to look at employees that have been there for a very long period of time, have an extended period of service and to say, ‘Well, they're getting on a bit. Surely they're close to retirement.’ They make that assumption. And of course, when it comes to discrimination, one of the most dangerous things are assumptions, assumptions about what people want, assumptions about what they can do, assumptions about what they are. That's anathema to good practise in terms of managing discrimination risk and conducting a business, which is not operating on discriminatory lines or on a discriminatory basis.”
Mr Byrnes addressed how employers might approach a redundancy that has the potential to be seen as discriminatory. He said: “What an employer should do in order to counter an allegation of discrimination in a redundancy context in particular, let's say age discrimination, is to have in place a very clear structural operational rationale for that particular position to have been made redundant.”
He added: “I think this is good practice for all employers in the context of redundancy to actually have undertaken a review of sorts. It doesn't need to be an external expensive review from a top firm of management consultants. It can be an internal review; but an internal review of some sort to show that the business has looked at all of the relevant positions, has decided on the basis of that review, particular positions are no longer required and then implemented that process of making those positions redundant, and then depending on consultation, redeployment, et cetera, the termination of employment of those employees on the basis of redundancy.”
To hear more from Mr Byrnes, tune in to The HR Leader podcast episode below!
The transcript of this podcast episode when quoted above was slightly edited for publishing purposes. To listen to the full conversation with Michael Byrnes, click below:
Note from the editor
This podcast was recorded in June 2022
RELATED TERMS
According to the Australian Human Rights Commission, discrimination occurs when one individual or group of people is regarded less favourably than another because of their origins or certain personality traits. When a regulation or policy is unfairly applied to everyone yet disadvantages some persons due to a shared personal trait, that is also discrimination.
When a company can no longer support a certain job within the organisation, it redundancies that employee.
Shandel McAuliffe
Shandel has recently returned to Australia after working in the UK for eight years. Shandel's experience in the UK included over three years at the CIPD in their marketing, marcomms and events teams, followed by two plus years with The Adecco Group UK&I in marketing, PR, internal comms and project management. Cementing Shandel's experience in the HR industry, she was the head of content for Cezanne HR, a full-lifecycle HR software solution, for the two years prior to her return to Australia.
Shandel has previous experience as a copy writer, proofreader and copy editor, and a keen interest in HR, leadership and psychology. She's excited to be at the helm of HR Leader as its editor, bringing new and innovative ideas to the publication's audience, drawing on her time overseas and learning from experts closer to home in Australia.