The employer, when making partial job cuts within a professional group, is obliged to apply the criteria for selecting employees for termination of their employment contracts.

The selection criteria are not listed in any regulation. Among the most important ones are the employee's performance appraisal, the employee's suitability for the job, their qualifications and professional skills, work experience, length of service and record of previous work, and availability to the employer.

The employer is not required to apply criteria relating to the employee's personal circumstances, such as the need to support a family, having other employment or the employee's age making it easier for them to find a job. If such criteria are used, they should be of auxiliary nature.

Failure to apply the so-called life criteria may expose the employer to a charge that the termination is contrary to the rules of social intercourse. In court, such an allegation can be successful if the dismissed employee demonstrates that their personal situation is significantly worse than that of the other employees on the jobs subject to cuts.

The use of an auxiliary criterion can be problematic. As a rule, employers do not know the exact life circumstances of their employees (or even should not know it). The need to establish these circumstances would generate an obligation to obtain detailed information from employees. The employer would also have to indicate to employees for what purpose it wants to obtain such information which, in turn, could lengthen the dismissal process or make it impossible in part, for example, due to employees' use of sick leaves.

Auxiliary criteria would be easier to apply in the case of job cuts in a small professional group. In a larger group, it can be difficult to assess which employee is in a more difficult situation, e.g. whether the employee is a single parent raising children or their spouse is disabled.

In court, employees rarely challenge the termination notices handed to them by relying on their personal circumstances. Thus employers, when considering the use of auxiliary criteria, should consider potential gains and losses. In the case of larger job cuts, the potential loss in the form of, for example, a lost lawsuit, may be considered lesser than the gain in the form of, for example, an efficiently implemented job reduction.

Find more in the PRO HR March 2023