Siobhan Murphy
Posted on 14 Sep 2021

Will the lack of an appeal render a dismissal for redundancy unfair?

Gwynedd Council v Barratt and another [2021] EWCA Civ 1322

Background

The Claimants were employed as teachers of physical education at a community secondary school (the School) by the local education authority for the county of Gwynedd. The Respondent, Gwynedd Council, resolved to implement a reorganisation of its primary and secondary education provision, which involved the closure of the School, together with 9 other primary schools and, in their place, establish from 1 September 2017 a new community all-through school for children aged 3 to 16.

The local authority informed affected staff that all existing employment contracts would be terminated on 31 August 2017. Staffing of the new school would be determined by an application and interview process. Unsuccessful candidates would be made redundant unless suitable alternative employment was found.

The Claimants applied for new roles and attended interviews. However, they were unsuccessful with their applications and, in May 2017, they were notified of their dismissal by reason of redundancy. The Claimants subsequently raised concerns that they were never given the opportunity to make representations or appeal the decision to dismiss, which was contrary to the Staffing of Maintained Schools (Wales) Regulations 2006. The Respondent apologised, but clarified that the failure to allow an appeal did not cause the Claimants any disadvantage as an appeal would have made no difference to the outcome. The dismissals were caused by the closure of the School and no appeal panel would have been able to reverse the fact of closure and, thus, avoid dismissals.

The Claimants brought proceedings for unfair dismissal in the Employment Tribunal (ET), including complaints that they had been denied their statutory and contractual right to appeal.

What did the ET decide?

The ET upheld the Claimants' claims for unfair dismissal. It noted that the Claimants were not involved, or consulted, in respect of the decision to dismiss all staff of all schools affected by the reorganisation, or the application and interview process. This was unusual and did not provide for effective consultation, as opposed to mere communication, in respect of the dismissals.

When considering the complaint regarding the right to appeal, the Judge commented that the Respondent had dismissed the Claimants' concerns regarding the right to appeal "with an ill-conceived assertion that denying the Claimants their rights of appeal did not cause them any disadvantage" which was "emphatically wrong". The injury to the Claimants was significant as an appeal is a fundamental part of a dismissal process. The Judge concluded that "an appeal is ingrained in principles of natural justice and, although I do not say that the absence of an appeal would render every dismissal unfair, I do determine that it requires truly exceptional circumstances to refuse an employee the right to appeal against their dismissal. Such exceptional circumstances do not exist in this case… threatening to dismiss staff and compelling them to apply for their own jobs or similar jobs ignores years of jurisprudence on dealing with potential redundancy situations."

The Respondent appealed against the ET's decision on various grounds, including that it had erred by holding that there is a requirement of "truly exceptional circumstances" to refuse an employee the right of appeal. The Employment Appeal Tribunal upheld the ET's decision on appeal, holding that the ET had applied a test of overall fairness and considered whether the employer's approach fell within the band of reasonable responses. The Respondent again appealed to the Court of Appeal and submitted that the earlier Tribunals had erred in law in finding that the dismissals had been unfair and by applying a test of "truly exceptional circumstances" when determining the fairness of the lack of a right of appeal.

What did the Court of Appeal decide?

The Court of Appeal held that the lack of any appeal or review procedure does not of itself render a redundancy dismissal unfair. However, it is one of the factors to be considered when determining the overall fairness of the dismissal, particularly where the employee had a contractual and statutory right to such an appeal. It also held that, even if the ET was wrong to hold that there is a test of truly exceptional circumstances, its conclusions on overall fairness were not invalidated. As such, the appeal was not upheld.

What can employers take from this?

This case clarifies that, whilst the absence of a right to appeal will not automatically make a redundancy dismissal unfair, it is an important factor to be considered when determining the issue of fairness. In cases where an employee has a statutory and contractual right to such an appeal, the absence of such right is more likely to render the dismissal unfair.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.