In the recent case of Gwynedd Council v Barratt & others the Court of Appeal considered whether the absence of an appeal would contribute to making a redundancy dismissal unfair.
Summary
The Claimants in this case were teachers, employed by Gwynedd Council. The schools that they worked at, along with several other schools in the area, were to be closed and replaced with a new community school for 3-19 year olds.
The contracts of employment for all teachers at the schools were going to be terminated and they were given the option to apply for roles in the new school. The employer decided to adopt an application and interview process, rather than applying a scoring matrix to select teachers for redundancy. The option to reapply for their jobs suggests that identical jobs, or at least substantially similar jobs existed.
The Claimants applied for the new positions but were unsuccessful. They were therefore made redundant due to the original schools closing. There was no consultation over the closure of the schools and the Claimants were not given the opportunity to appeal the decision to make them redundant. The governing body of the new school apologised for the lack of appeal but stated that it had not caused any disadvantage as the dismissals were caused by the school closures, and no appeal panel could have reversed that decision.
The Claimants claimed that they had been unfairly dismissed and the Employment Tribunal upheld this claim. The Tribunal found that there had been no consultation, the staff had to apply for their own jobs in a competitive interview process, and they had not been offered a right of appeal.
The Respondent appealed the Tribunal’s decision but the EAT upheld the original judgment and found that the redundancy process was unfair due to the teachers being asked to apply for the same or substantially similar jobs, rather than new posts. The EAT found the employer’s approach to alternative employment unfair, since the Claimants effectively had to apply for their own jobs.
This case reached the Court of Appeal, at which point it was noted that a Tribunal must have regard to all the relevant circumstances, including the opportunity to be consulted and to appeal the decision.
The Court of Appeal judgment was that it “should have been foreseeable that any affected employees might want to appeal or grieve against the procedures adopted, so arrangements should have been put in place at the time to deal with these matters”. The judgment went on to confirm that “an appeal is a fundamental part of the dismissing process. It affords the employer another opportunity to look at the dismissal and it offers the employees the opportunity to show that the employer’s reason for dismissing them could not be treated as reasonable”.
This case reminds us that a fair redundancy process requires the employer to identify a pool of at-risk employees and to score those employees against fair selection criteria. Genuine consultation processes should be followed, and the employer should attempt to provide suitable alternative employment.
There were no exceptional circumstances in this case which would have made it acceptable to deny the employees the opportunity to appeal the decision to dismiss, it was therefore deemed unfair to deny the Claimants the right to appeal and this demonstrates that allowing appeals will help to demonstrate that a fair process has been followed throughout the redundancy process.
For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.
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This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
