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Will a redundancy dismissal without appeal always be unfair?

Redundancy dismissal - Man packs box

A recent Court of Appeal decision confirmed that a redundancy dismissal without appeal will not always be unfair. In Gwynedd Council v Barratt and another [2021] it was held that the absence of an appeal will be just one factor to consider in respect of the overall fairness of a redundancy dismissal.

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In Gwynedd, the court dismissed an appeal from the Council regarding a tribunal decision which found that two schoolteachers, who were denied their statutory and contractual right of appeal to redundancy, had been unfairly dismissed.

The Respondents were PE teachers at Ysgol y Gader school, employed by Gwynedd Council. As part of its reorganisation of education provision in the area, the Council closed the school, replacing it with a new one. The teachers were to be made redundant unless they secured a role at the new school via a formal application process.

The Claimant teachers were unsuccessful with their applications and were made redundant on 31 August 2017. The Claimants issued Tribunal proceedings for unfair dismissal, claiming that, contrary to their contractual and statutory entitlement (under regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006) they had not been allowed to make representations or appeal the redundancy decision.

The Tribunal found that the dismissal was substantively and procedurally unfair. In his judgement, Employment Judge Tobin stated that  “although [he] do[es] not say that the absence of an appeal would render every dismissal unfair, [he] do[es] determine that it requires truly exceptional circumstances to refuse an employee the right to appeal against their dismissal”.

The Council appealed on several grounds, including that the tribunal erred in law by applying the “truly exceptional circumstances” test. The Court of Appeal upheld the Tribunal and EAT decision and dismissed the appeal. It agreed that the Tribunal’s conclusions on fairness were not invalidated by its application of the “truly exceptional circumstances” test; that the Tribunal had not applied a general rule that redundancy dismissal absent an appeal would automatically be unfair; and that the Tribunal had correctly concluded that the absence of an appeal was substantively and procedurally unfair in this case.

The Tribunal was found to have applied a test of fairness and considered whether the employer’s approach fell within the band of reasonable responses in circumstances where the teachers, who had a clear right of appeal, were denied the opportunity to raise a grievance against the redundancy procedures adopted, or be consulted about the dismissals. So, while a lack of appeal alone may not necessarily render a redundancy dismissal unfair, in this case, it did.

The case confirms the decision in Robinson v Ulster Carpet Mills [1991] IRLR 348 which held that absence of appeal in redundancy cases would not always render the dismissal unfair. However, Gwynedd differs from that case as it considers a situation where an internal mechanism requiring an appeal existed.

To avoid adverse claims in redundancy situations, employers should ensure they follow proper and fair procedure. Usually this will include providing an opportunity to appeal, but, as evidenced by this case, each situation is different. Accordingly, it is advisable to seek legal advice.

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