Is not providing an opportunity to appeal a dismissal on the grounds of redundancy unfair?

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Employment & HR Article

14 September, 2021

The Court of Appeal has recently considered whether the failure to offer an employee an appeal on a redundancy scenario makes any dismissal unfair in the case of Gwynedd Council v Barratt and anor.

Facts

The two claimants were PE teachers at a community secondary school. In May 2015, the Council announced the school would close permanently on 31 August 2017 and be replaced with a new community school. Staff were informed that they could apply to work at the new school but unsuccessful candidates would be made redundant.

The vast majority of staff were successful in their applications however the claimants were not and were accordingly dismissed on the grounds of redundancy. They subsequently claimed unfair dismissal on a number of grounds including that they had not been offered a right to appeal.

First instance decision

In the employment tribunal, the judge found that the dismissals were unfair, due to factors including the Council's lack of effective and meaningful consultation and notably, that it was substantively and procedurally unfair to deny the right of appeal. The judge noted that 'truly exceptional circumstances' are required to refuse an employee the right to appeal a dismissal and such circumstances were not present in this instance.

Appeal

The Employment Appeals Tribunal (EAT) dismissed the Council's appeal so the Council appealed to the Court of Appeal.

The Council's appeal had relied upon an EAT decision, that stated, "it would be wrong to find that a dismissal on grounds of redundancy was unfair because of the failure to provide an employee with an appeal hearing." However this was a case that went unreported, was 16 years old by the time of the Court Hearing and is not widely referred to in academic texts. As a result, the Court of Appeal felt this was not a general legal principle.

Nevertheless, the Court of Appeal agreed with said approach that in redundancy cases, the absence of an appeal does not of itself make the dismissal unfair. Therefore, it would be wrong to find that a dismissal on the ground of redundancy was unfair only because of the failure to provide an employee with an appeal hearing and the absence of an appeal is one of the many factors to be considered when determining fairness.

Ultimately though despite the Court's determination on this point it found that the Council's failure to offer an appeal in the circumstances was outside of the band of reasonable responses and therefore the Council's appeal was dismissed.

Take away

This case is useful in that it is clear that the failure to provide an appeal in a redundancy situation does not automatically make any decision to dismiss that employee unfairly.

However, the decision not to offer an appeal will be determined by any Tribunal or Court whether that decision was within the band of reasonable responses and the circumstances when it is likely to be within the band of reasonable responses to not offer an appeal are limited. So whilst this decision provides more flexibility than a requirement for the circumstances to be truly exceptional to not offer an appeal, it would still be rare that a failure to offer an appeal would be fair.

Therefore as a rule, an appeal against a redundancy decision should always be offered where possible.

For more information contact Alice McKenna in our Employment & HR department at alice.mckenna@forbessolicitors.co.uk. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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