Redundancy: is a lack of appeal fatal to a redundancy dismissal?

The Court of Appeal, in the recent case of Gwynedd Council v Barratt & others, has confirmed that the absence of any appeal or review procedure does not, on its own, make a redundancy dismissal unfair. However, it could be a factor among a range of other issues which would have that effect – schools should consider the fairness of their whole redundancy process to avoid problems.

Ms Barratt and Mr Hughes were employed as teachers by the appellant, Gwynedd Council, at a community school.

The council made the decision to restructure both primary and secondary education, by closing a secondary community school (School A) together with nine primary schools, replacing it with a new, all ages, community school (School B).

With the restructure of the schools, came a restructure of the employees. The council informed affected staff that:

• All existing contracts of employment would be terminated
• Staffing of School B would be determined by an application and interview process
• Unsuccessful candidates would be made redundant (unless they were successfully redeployed).

Ms Barratt and Mr Hughes applied for their original positions at School B, were interviewed, but were unsuccessful. The council gave them notices of termination on the grounds of redundancy. Ms Barratt and Mr Hughes highlighted that they hadn’t been offered the right to appeal their dismissal but in response, School B, whilst apologising for this, stated that the failure to allow an appeal did not cause Ms Barratt and Mr Hughes any disadvantage. This was on the basis that an appeal would have made no difference to the dismissals, as they were caused by the closure of School A, which could not be reversed.

The Employment Tribunal decision

Ms Barratt and Mr Hughes brought claims for unfair dismissal.

The Tribunal upheld the claims but acknowledged the fact that Ms Barratt and Mr Hughes would have still been dismissed, even if they had exercised their rights to an appeal, as it would not have made a difference to the outcome.

It was ultimately held that the dismissals were unfair due to:

• A failure to provide Ms Barratt and Mr Hughes with a right to appeal. This was on the basis that it required ‘truly exceptional circumstances’ to refuse an employee the right to appeal their dismissal; circumstances which the Tribunal found were not present in this case
• The absence of consultations
• The council’s method of dealing with the re-employment, which was found to be inappropriate.

The Court of Appeal

Following an unsuccessful appeal at the Employment Appeal Tribunal, the council took the case to the Court of Appeal. The appeal was made on various grounds, but most significantly, they stated that the Tribunal had come to the wrong conclusion when it found that it is only under truly exceptional circumstances that an employee can be refused the right to appeal.

The appeal was unsuccessful. The Court of Appeal confirmed that there was no general principle that a lack of appeal procedure made a redundancy process substantively and procedurally unfair. Rather, in this case, the Tribunal had looked at the facts and concluded that it was one of a number of factors (as set out above), that contributed to the overall unfairness of the process.

How does this affect schools?

This case reinforces the need to hold a fair redundancy procedure. We would stress that whilst, in this case, the Court of Appeal confirmed that the lack of an appeal would not automatically make a dismissal unfair, it will still be a factor taken into consideration when reviewing the overall fairness of a redundancy procedure.

As such, it remains crucial that schools are following the correct procedures and guidelines when making staffing cuts and restructuring schools.

Schools should continue to give employees the right to appeal dismissals, even if they consider hearing an appeal would make no difference to the outcome.

To assist those schools needing to make staffing cuts, on behalf of the ISBA, we have prepared a detailed advice note on “staff cost savings and workplace planning for schools, including redundancies and restructures”, which deals with issues including appeal processes.

We do however recommend that if schools are considering not offering a right to appeal against a dismissal, that they seek legal advice at an early stage, so that they can be guided through the procedural difficulties and avoid a claim for unfair dismissal.