An employer may not limit the choice of workers to be made redundant only to employees assigned to the department to be abolished or downsized, if they are qualified to do the jobs of colleagues in other departments

Supreme Court, employment section, March 2021, no. 5647

In this case, the judges of merit ruled as unfair the dismissal of a clerk in the context of a collective redundancy, on the basis that the company should have made a comparative check with the rest of the clerical staff with equivalent skills, albeit in different departments.
This conclusion was also upheld by the Supreme Court.
As noted by the Supreme Court in the judgment in question, “in terms of a collective dismissal, the double reference made by Law no 223 of 1991, art. 5(1) to the technical and organizational needs of the company as a whole, means that the reduction of staff must, as a general rule, affect the entire company, being limited to specific branches of the company only if they are characterized by autonomy and specificity of skills, non-fungible compared to others”.
It follows, continues the Court of Cassation, that “the reference to ‘personnel habitually employed’, added to the original text of the law, implies that the professional profiles to be taken into consideration are those of all employees potentially affected by the redundancy, among whom, at the end of the procedure, the choice of redundant workers will be made. The burden of proof, in demonstrating the recurrence of the specific professional skills or, in any event, of the objective situations that make any comparison impracticable, lies with the employer (Court of Cassation nos. 22824 and 22825 of 2009; Court of Cassation no. 14612 of 2006; more recently see Court of Cassation no. 203 of 2015 and Court of Cassation no. 19105 of 2017)”.
Therefore, choosing workers only because they are employed in the abolished or downsized department, and neglecting the fact that they possess equivalent skills to those of employees in other parts of the organization, is unlawful. 
The Supreme Court concludes the illegitimacy of a collective redundancy where the employer has not in any way compared all workers having homogeneous skills with those of other workers remaining in a job.
Of course, it is up to the employer to prove that workers with the same professional qualifications are not able to perform the jobs remaining as a result of a corporate reorganization.