Absence of appeal
We explore whether an absence of an appeal does not, on its own, make redundancy dismissal unfair.
In the recent case of Gwynedd Council v Barratt, the Court of Appeal confirmed that the absence of a right of appeal does not, on its own, make a redundancy dismissal unfair. However, it is one of the many factors to consider in determining the fairness of the dismissal.
The claimants were two teachers employed by the respondent. The community secondary school where they worked was closed and was replaced by a new school. Instead of applying a selection process to determine which teachers would be made redundant, the council decided that staffing at the new school would be determined by application/interview process. The claimants were unsuccessful in their application and given written notice of termination on the grounds of redundancy. They brought claims for unfair dismissal on the basis that, amongst other things, they were not afforded a right of appeal.
The Employment Tribunal concluded that the methods used to deal with the redundancy situation were unfair. The judge cited a lack of opportunity for consultation about selection and found it particularly unfair to deny the claimants a right of appeal. He stated that it requires ‘truly exceptional circumstances’ to refuse an employee the right to appeal a dismissal. The Council appealed to the Court of Appeal relying a 2005 case to argue ‘it would be wrong to find that a dismissal on grounds of redundancy was unfair because of the failure to provide an employer with an appeal hearing.’
The Court of Appeal dismissed the appeal, considering the 2005 case did not establish any general principle. However, it agreed with the proposition that in redundancy cases the absence of an appeal does not, on its own, make a dismissal unfair. It held that it is one of the many factors to be considered when determining the overall fairness of the dismissal. The claimants in this case were found to have been unfairly dismissed because the council’s failure to offer an appeal was coupled with a lack of effective consultation.
This case confirms that the failure to allow an appeal may not mean a dismissal is inevitably unfair provided the redundancy follows a fair process. However, it is a reminder to employers that it is still one of a range of factors considered when assessing claims for unfair dismissal. Employers should therefore avoid ‘cutting corners’ with their redundancy processes as this may be procedurally and substantively unfair.
A right of appeal is now rarely refused because it is ingrained within employment practices. The safest course of action will usually be to offer a right of appeal unless there are exceptional circumstances justifying the refusal. This also gives employers an opportunity to explore any issues with redundancy selection and consultation internally in order to reduce any basis for a claim.