Employment Law Case Update: Right to Appeal in Redundancies

Offering the right to appeal can be a difficult decision; while it is not always a legal right, it could be considered an ethical right to allow an employee the right to appeal the decision to dismiss them. Our Employment Law team here reviwes the case of Gwynedd Council v Barratt and anor and whether an opportunity to appeal is a necessary component of a fair dismissal procedure.

Ms Barratt and Mr Hughes were both teachers employed by Gwynedd Council until their dismissal in 2017 when the school they worked at closed permanently. A new school was then established at the same location and teachers from the old school were told they would need to apply for positions at the new school. Ms Barratt and Mr Hughes were unsuccessful in their applications and were consequently made redundant. Ms Barratt and Mr Hughes filed a claim in the Employment Tribunal (ET) claiming that their dismissals were unfair because (among other reasons) they were not given the right to appeal. 

The ET accepted that Ms Barratt and Mr Hughes were dismissed by way of redundancy, but found that the dismissals had been unfair. In reaching the decision, the ET took note of the fact that Gwynedd Council failed to properly consult with the affected staff regarding the redundancies and that the unsuccessful applicants were not given a chance to appeal their dismissal.

The Employment Appeal Tribunal (EAT) upheld the ET’s decision and dismissed the Council’s appeal. The Council then appealed to the Court of Appeal (CA).

The CA dismissed the appeal. Lord Justice Bean wrote that “if the original selection for redundancy was in accordance with a fair procedure the absence of an appeal is not fatal to the employer’s defence” and that “it would be wrong to find a dismissal unfair only because of the failure to provide the employee with an appeal hearing”. However, the CA reasoned, the ET had not treated the absence of an appeal as automatically rendering the dismissal unfair. Rather, the ET had applied the correct test of fairness and considered whether the decision to dismiss fell within the range of reasonable responses. In reaching its decision the ET considered not only the lack of appeal but also the Council’s failure to properly consult with the affected teachers and so the ET was therefore entitled to find that the dismissal was unfair.

This case is significant for employers because it confirms that a dismissal will not necessarily be unfair solely because the dismissed employee was not offered a right to appeal. The right to appeal is only one factor the courts will look at when considering the fairness of the dismissal as a whole. As this is a Court of Appeal decision it will be binding on lower courts in future cases.

Another recent case that followed similar reasoning is the case of Moore v Phoenix Product Development Limited, heard in the EAT. In that case, a director was dismissed following a complete breakdown in the relationship between him and the other members of the board. The EAT reasoned that though an appeal will often be part of a fair dismissal procedure, this will not always be the case and courts will need to consider all the relevant circumstances when deciding whether a dismissal was fair. Employers should therefore still be cautious and remember that in many cases, an opportunity to appeal a dismissal should form part of their fair procedure.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.