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Can a Redundancy Selection Process Be Fair If There Is No Ability to Appeal?

on Friday, 10 September 2021.

In a recent case, the Court of Appeal considered whether a lack of an appeal in the redundancy selection process resulted in dismissals being unfair.

Employers looking to carry out redundancies will often be rightly concerned that their redundancy selection process is fair so as to avoid potential claims for unfair dismissal being brought against them.­

An employee with sufficient qualifying service (at present, this is two continuous years) is entitled not to be unfairly dismissed. Redundancy is a potentially fair reason for dismissal if the employer acted reasonably in all the circumstances in dismissing the employee pursuant to s98 of the Employment Rights Act 1996.

Many factors are considered in determining whether a redundancy is fair or not. One of these factors is whether the employee was given a right of appeal.

No Right of Appeal

In the recent case of Gwynedd Council v Barratt & others, the Court of Appeal upheld an employment tribunal and EAT decision regarding the unfair dismissals of two teachers, Shelley Barratt and Ioan Hughes employed at a community secondary school maintained by Gwynedd Council.

Ms Barratt and Mr Hughes had been unfairly dismissed when their school closed and a new one opened on the same site. In this case, there had been no consultation over the closure of the school, the claimants had no right of appeal, and their applications for new roles at the new school had been unsuccessful.

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The Court of Appeal held that, whilst it would be wrong to find a dismissal unfair simply by virtue of a lack of an appeals procedure, a tribunal must have regard to all the relevant circumstances. Such relevant circumstances include any appeals process, consultation undertaken or whether staff could raise a grievance about the process.

Local authorities should note that, in the above case, there was nothing provided in the Staffing of Maintained Schools (Wales) Regulations 2006 to allow local authorities to avoid their obligations as employers under the law, and that the Council remained the claimants' employer.

What Does This Mean for Employers?

As this case demonstrates, an employer may not need to have an appeals process in order to ensure its redundancy selection process is fair. This may be of some comfort to employers carrying out large-scale redundancies, who may consider an appeals process to be unduly time consuming and onerous where significant consultation has already taken place.

However, it will normally be advisable for there to be such a process in place where possible, as its absence will be taken into account by the tribunal in considering the fairness of any dismissals.

If you would like specialist advice in relation to any redundancy process or unfair dismissal claims, please contact Zahra Gulamhusein in our Employment Law team on 01923 919 300, or please complete the form below.

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