1. Introduction

The case of Kevin Foley v Digital River Ireland Limited (ADJ-00043952) is a detailed and instructive example of a sham redundancy claim succeeding at senior management level. The Adjudication Officer considered an extensive evidentiary record of correspondence and meeting notes and found that the Respondent had finalised the decision to terminate the Complainant’s employment before any consultation process commenced.

The Complainant was employed as a Senior Director of Sales for EMEA with the Respondent from 31 May 2021 until 19 October 2022. The Respondent had undergone a global collective redundancy process in July 2022, in which the Complainant’s role was not affected. In August 2022, the Complainant signed a Retention Bonus Agreement worth €30,000 and was identified in the Respondent’s strategic documents as the future Europe leader. Within weeks, he was informed that his role was “at risk” of redundancy and was dismissed on 19 October 2022..

2. Legislation and Case Law

Section 6(1) of the Unfair Dismissals Act 1977 establishes the presumption that a dismissal is unfair unless there were substantial grounds justifying it. Section 6(4)(c) allows a dismissal by reason of redundancy to provide a defence, but Section 6(6) places the burden of demonstrating that the dismissal resulted wholly or mainly from the redundancy on the employer.

The leading authority on the burden remains JVC Europe Ltd v Ponisi [2012] E.L.R. 70: “In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite.”

The procedural requirements of a lawful redundancy are well-established: notice of risk, genuine consultation, objective selection, consideration of alternatives (including any proposals advanced by the employee), and a right of appeal. The Adjudication Officer’s summary in Tracey Ring v Student Facilities & Services (UCC) DAC T/A Unisalon (ADJ-00037197) is now a canonical statement.

Pre-determination of the outcome of a consultation process is a recurring issue in sham redundancy cases. The WRC in cases including Philip Hanley v PBR Restaurants Limited (ADJ-00031598), Patrick Troy v Flynn Management & Contractors Limited (ADJ-00028488) and Gerard Buston v Duggan Systems Limited (ADJ-00030023) has repeatedly held that where the consultation amounts to no more than a “box-ticking exercise”, the dismissal will not be saved by the redundancy label.

On compensation, Section 7(1)(c)(i) provides for a ceiling of 104 weeks’ remuneration. The award is to reflect financial loss attributable to the dismissal and must be just and equitable in all the circumstances. 

3. Decision

On the question of whether a genuine redundancy situation existed, the Adjudication Officer was confronted with a difficult evidential picture for the Respondent. The Complainant’s role had been clearly identified in the Respondent’s post-restructure strategy documents of August 2022 as the future EMEA Sales Leader. He had received explicit assurances from his manager that there would be no further redundancies in September. He had signed a Retention Bonus Agreement on 1 September 2022 referring to his “continued service and dedication” to the Respondent as “essential to our business operations”.

On the procedural conduct of the redundancy, the Adjudication Officer noted that the consultation meetings had been scheduled and pressed forward at speed, with limited regard for the Complainant’s requests for additional time to take legal advice. The Complainant’s alternative role proposal had been rejected by return of email, before any substantive consideration of it had been undertaken.

The Adjudication Officer noted further that the manager taking over the Complainant’s responsibilities had been losing two of his own direct reports through resignation, with the consequence that, after the dismissal, the manager would have fewer direct reports than the Complainant. The asserted rationale based on direct report numbers therefore did not withstand scrutiny.

The factual record before the Adjudication Officer supported the Complainant’s case that the decision to dismiss had been pre-determined and that the consultation process had not been a genuine inquiry into whether dismissal was necessary.

4. Takeaway

The case is an excellent illustration of the close evidential scrutiny that the WRC will apply to a senior-level redundancy where the surrounding facts are suggestive of a pre-determined outcome. The combination of factors here — a recent retention bonus, identification in strategic documents as the future regional leader, explicit assurances of no further redundancies, and a sudden “at risk” meeting within weeks — made the employer’s defence very difficult to maintain.

For employers, the practical lesson is that consistency of action matters. An employer who has, within the previous weeks, signed a retention agreement with an employee and identified that employee in strategic documents as central to the future of the business cannot, absent a clearly evidenced material change of circumstances, then make that role redundant.

Employers should also be alert to the appearance of pre-determination in the consultation process. A redundancy proposal that is rejected within hours by return email, without engagement on the substance, will be treated as evidence that the consultation was a box-ticking exercise. The proper course is to allow time for proposals to be considered, to engage with the substance, and to give a reasoned response.

For employees, the case is helpful authority that the WRC will look at the totality of the surrounding circumstances. Strategic documents, retention agreements, manager communications, and the timeline of events can all be deployed to demonstrate that the redundancy was a label rather than a reality.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

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