Is an appeal necessary in a redundancy situation?
30 September 2021
If an employee has 2 years’ continuous employment, then they have the right to bring a claim in the Employment Tribunal if they are unfairly dismissed. Redundancy is one of the five potentially fair reasons for dismissal, but in order for a redundancy dismissal to be fair, it is essential that an employer follows a fair procedure. This will involve making a fair selection process where there is a pool from which the employees are to be selected, consulting with the employees, exploring ways of avoiding redundancies and considering whether the affected employees can be redeployed elsewhere in the organisation. However, in a recent case an Employment Tribunal considered an interesting question: if an employer does not offer an appeal to those selected for redundancy, does that make the process unfair?
Good practice guidance
ACAS have produced guidance on carrying out a redundancy process, and this states that “It’s good practice to offer employees the chance to appeal if they feel they were selected unfairly for redundancy.” However, that is very different from the ACAS Code of Practice on Disciplinary and Grievance Procedures, which states that an appeal should be offered to any employee subject to disciplinary action. Unlike the ACAS Code of Practice on Disciplinary and Grievance Procedures, the ACAS guidance on redundancies does not have any particular authority in Employment Tribunal claims. If an employer fails to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, then compensation to the employee can be increased by up to 25%. That is not the case with redundancies.
Recent case law
The issue was recently considered by the Court of Appeal in the case of Gwynedd Council v Barratt and others . In this case, Ms Barratt and the other claimants were teachers at a school which closed. Another school opened on the same site, and all the teachers were told they had to apply for the jobs at the new school. The teachers (or other employees) had not been consulted on the proposals at all, and those who were not successful in securing new roles were made redundant. The Employment Tribunal found that the dismissals were unfair because of the lack of consultation, the fact that the employees had to apply for their own jobs, and the fact that the Council had not offered any right of appeal. The Council appealed to the Employment Appeal Tribunal which upheld the Tribunal’s decision, and then the matter progressed to the Court of Appeal.
One of the grounds of appeal was that the Tribunal and the Employment Appeal Tribunal were wrong to conclude that the dismissals were unfair because the employer had not offered an appeal. The Court of Appeal rejected this. They held that the failure to offer an appeal did not in itself mean that the dismissal was unfair, but it was one of the factors for Tribunals to consider in assessing the fairness of the whole redundancy process. They said a Tribunal would have to look at all the circumstances, and the lack of an appeal may render a redundancy dismissal unfair. That said, where for example, an entire organisation is closing and all the staff are being made redundant, it is very unlikely that a failure to offer an appeal would render a dismissal unfair.
Dealing with redundancies can be one of the most challenging issues which employers will have to deal with, both from a legal perspective and from an emotional point of view. The team at Pure Employment Law have many years of experience in helping employers through this minefield, and the best advice is always to plan early and seek advice on the process before you start.
If you are an employer who is dealing with a redundancy matter, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].