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Will a redundancy dismissal be unfair if there is no offer of appeal?
The Court of Appeal (“CA”) in the case of Gwynedd Council v Shelley Barratt & Ioan Hughes considered whether the absence of an appeal process resulted in the unfair dismissal of two teachers.
The Claimants were employed as teachers by the Respondent local authority at a community secondary school. It was decided that the school would be closed and a new school opened following this closure. Staff were informed that they would have to apply for their roles at the new school. The Claimants were unsuccessful in their applications. They were then dismissed by reason of redundancy following the closure of the school, effective from 31 August 2017.
The Claimants approached their trade union representative and raised the fact that they had not been consulted, given the opportunity to make representations or offered the right to appeal following the decision to dismiss. The chairperson of the governing body of the previous school contended that the Claimants were not disadvantaged in anyway by not having the opportunity to appeal the decision as this would not have reversed the decision to close the school, rendering their roles redundant. The Claimants brought a claim of unfair dismissal to the Employment Tribunal (“ET”).
Under section 94 of the Employment Rights Act 1996 (“ERA 1996”) an employee has a right not to be unfairly dismissed. Section 98(4) of the ERA 1996 determines the fairness of dismissals and whether a dismissal is fair or unfair “depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.”
Section 139 of the ERA 1996 deals with redundancy dismissals. In determining the fairness of a dismissal, the ET must assess whether the decision to dismiss fell within the range of reasonable responses that a reasonable employer could have taken having regard to section 98(4) above and principles of fairness established in case law (Williams and others v Compair Maxam Ltd and Polkey v AE Dayton Services Ltd). The latter case is the leading case on reasonableness in relation to redundancy and sets out a number of factors an employer must do in a redundancy dismissal, otherwise the dismissal will be held to be unfair and the employer to have acted unreasonably.
In the first instance, the Employment Tribunal held that the dismissals were unfair due to the failure to allow for a right of appeal, a failure to consult with the employees and the fact they had to in effect “apply for their own jobs” again.
The Respondent local authority appealed this decision contending that the ET had erred in its interpretation of fairness under Section 98(4) of the ERA 1996. The EAT dismissed the appeal, concluding that the Tribunal had not erred in its approach. The Judge noted that the failure to offer an appeal process alone will not automatically render a dismissal unfair on its own, but it is one of many considerations to take into account in determining the overall fairness of the dismissal, it is certainly an important factor that is usually expected in a “fair and reasonable dismissal procedure.”
The Respondent local authority further appealed this decision to the CA, the CA was in complete agreement with the EAT’s decision and therefore dismissed the Respondent’s appeal and upheld the finding of unfair dismissal.
This case highlights that a Tribunal will not make a finding of unfair dismissal for failing to offer an employee the right of appeal in a redundancy process alone, but it is certainly an important factor of many that will be taken into account in determining the overall fairness of the dismissal. For employers to avoid any questions over procedural fairness and reduce the risk of unfair dismissal claims, employers should ensure that they follow all standard procedural steps.