The English Court of Appeal held that the lack of any appeal or review procedure does not of itself render a redundancy dismissal unfair.
Ms Barratt worked as a PE teacher in a primary school run by Gwynedd Council. The Council decided to close several primary schools and combine them to form one new school. This included the school that Ms Barratt worked at. The merging of multiple schools meant that a number of employees would be made redundant and the Council decided to implement an application and interview process in order to determine who would continue teaching and who would be made redundant.
Ms Barratt applied for the role as PE teacher but she was unsuccessful, resulting in her role being made redundant. She was not offered the opportunity to appeal the redundancy decision.
Ms Barratt, along with another teacher who failed to secure a position, claimed they had been denied their statutory and contractual right of appeal and brought claims of unfair dismissal, which were upheld by an employment tribunal. The Employment Tribunal criticised the council’s approach due to the lack of consultation, the fact they were required to essentially apply and interview for their own jobs and finally the claimants’ inability to appeal the decision or make a grievance about it.
Employment Appeal Tribunal
Gwynedd Council appealed the tribunal findings on various grounds. In particular, they argued that the Tribunal had erred by holding that there is a requirement of "truly exceptional circumstances" to refuse an employee the right of appeal. The EAT did not uphold the Council’s arguments and that matter was considered further by the Court of Appeal.
Court of Appeal
The Court of Appeal clarified that failure to allow the employees to appeal the decision to make them redundant of itself does not constitute an unfair dismissal. However such a failure may be a relevant factor when deciding if a dismissal is unfair. The Court confirmed that the Council’s redundancy process was substantively and procedurally unfair due to the absence of proper consultation. Further, they held that no reasonable employer would have refused to consider an appeal in circumstances where an employee had a clear right of appeal. As noted above, the employees in this case had a contractual right of appeal.
What this means for employers
This case acts as an important reminder to employers to ensure their redundancy consultation processes are fair. It is not enough for there to be a fair dismissal that there is a genuine redundancy situation. While refusing to allow an employee to appeal the redundancy decision will not on its own render the dismissal unfair, the lack of an appeal will be considered carefully by the tribunal when determining the fairness or otherwise of the dismissal.
This article was co-written by Jenna Alexander, Trainee Solicitor.