Redundancy appeals and unfair dismissal

With the end of furlough approaching, many businesses are having to think (if they haven’t already) about their plans going forward. Redundancies are one of the options that employers are having to consider, and we have had a number of enquiries from businesses across the UK who are exploring this.

A recent case has been reported providing some insight into the procedure relating to redundancies which may be useful for those businesses having to carry out redundancies.

The Court of Appeal recently held in Gwynedd Council v Barratt and another [2021] EWCA Civ 1322 that the lack of an appeal or review procedure of the redundancy process alone does not make the redundancy dismissal unfair.

The facts and findings

The employees were employed as teachers for Gwynedd Council, and they were made redundant when the school where they worked closed. A new school was later opened at the same site but there was no consultation over the closure. The employer refused to allow the affected employees to exercise both their statutory and contractual right to appeal.

The employees applied for roles at the new school, but no offers were made. The employees subsequently brought unfair dismissal claims against the employer which the employment tribunal decided in favour of the employees. 

The employer later appealed the decision on various grounds one being that the employment tribunal had made an error that there is a requirement of “truly exceptional circumstances” to refuse the right of an appeal by an employee.

The Court of Appeal however dismissed this argument stating that the employment tribunal’s decision on the fairness of the process was not wrong because of the “truly exceptional circumstances” test. It was held that the employment tribunal had not solely relied on the test to determine whether the refusal to allow appeals made the dismissals unfair, but it was held that this with the lack of a review process and other matters together made the dismissals unfair.

It was held that the employment tribunal had in fact considered other factors in addition to the lack of right to appeal such as the lack of the employees’ ability to raise a grievance about matters relating to the process and the employer’s failure to consult. The Court of Appeal held that the employment tribunal’s consideration of the whole process showed that a test of overall fairness was applied, and the tribunal had considered whether the employer’s approach fell within the range of reasonable responses.

What to take from this decision?

The Court of Appeal decision clarifies that where the selection for redundancy demonstrates a fair procedure, an employer’s failure to allow an appeal alone does not render the dismissal unfair. It is however one of the factors to be considered when determining the overall fairness of the dismissal. In other words, the courts will assess the employer’s conduct throughout the entire process.

If your business is considering making redundancies or you have already initiated the consultation process, you should ensure that a fair process is followed.

The outcome of this case means that a refusal to allow an appeal alone will not jeopardise the fairness of the procedure, but it is important to follow good employment practices to avoid the risk of any claims arising.

If you have concerns about a procedure which has already been followed and you wish to ensure that there is no risk attached to the redundancy process, you can propose a settlement agreement whereby the employee agrees to waive their right to pursue a claim for unfair dismissal against the business in the employment tribunal. If you would like to explore this further, please do not hesitate to get in contact.

If you have any questions relating to the redundancy process or would like assistance with the process, we would be happy to discuss this with you. 

Link to judgment