When dismissing employees on the ground of redundancy, employers must act fairly and reasonably by applying a fair procedure which is likely to include a right of appeal. In Gwynedd Council v Barratt and anor, the Court of Appeal agreed with the tribunal judge that the Council’s failure to allow an appeal had denied the claimants their rights on a fundamentally important issue.
Basic facts
As part of a reorganisation of educational provision in the local area, the Council announced the closure of a community secondary school and nine primary schools to be replaced by a new community school. The Council informed the affected schools that staffing would be determined by an application/interview process and that staff would be dismissed on 31 August if they were not successfully redeployed.
Following their interviews, Ms Barratt and another colleague were told that they had been unsuccessful and given notice of termination on the ground of redundancy. They queried the fact that they had not been given a right of appeal under regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006. The Council told them that an appeal would not have made any difference as the dismissals were the result of the school closures and no appeal panel could have reversed that decision.
Ms Barratt and her colleague brought claims of unfair dismissal.
Decisions of tribunal and EAT
Whilst acknowledging that a failure to provide a right of appeal would not render every dismissal unfair, the tribunal held that it would require exceptional circumstances (which did not exist in this case) to allow an employer to fail to apply “the principles of natural justice”. It therefore concluded that “it was substantively and procedurally unfair to deny the claimants their right of appeal and that no reasonable employer would refuse to consider an appeal in circumstances where an employee had a clear right of appeal”. The EAT dismissed the Council’s appeal (weekly LELR 688).
The Council appealed again to the Court of Appeal arguing that it was not clear to whom the claimants had a meaningful right of appeal. Firstly there was no point in an appeal to the school in which they had taught because it was closing and secondly, the school that was opening had no obligation to hear their appeal, because it was not their employer. In any event, the Council could not be held liable for the decisions of governing bodies which were independent of them in law.
Decision of Court of Appeal
The Court acknowledged that the absence of an appeal or review procedure in a redundancy case would not – in and of itself - make a dismissal unfair. However, although it was only one of many factors to be considered by tribunals when determining fairness, the tribunal judge had correctly considered all the circumstances in concluding that the failure to allow an appeal was a fundamentally important issue. The judge’s conclusion - that the Council had ignored the established method of dealing with redundancy - was entirely open to him on the evidence.
In this case, the tribunal was concerned not just with the absence of an appeal but the lack of any opportunity for the claimants to lodge a grievance or be consulted about the dismissals. It was therefore entirely foreseeable that some of the affected employees would want to challenge the process and arrangements should have been put in place to facilitate them in doing so.
As for the Council’s argument that the regulations did not provide a right of appeal to the new school, the Court dismissed this argument as a complete “distraction”. As an employer the Council “remained subject to its obligations under the Employment Rights Act 1996. These include, where teachers are made redundant, the obligation to ensure that a fair process is followed”. They did not (nor could they) provide local authorities with “an escape route to circumvent their obligations as employers under the general law”.
The appeal was dismissed.
Comment
Whilst the question of fairness depends on all the circumstances, this case places a helpful emphasis on the importance of allowing employees an opportunity to appeal against dismissal. The case also serves as a useful reminder to employers that requiring employees to apply for their own jobs is not the established method of dealing fairly with redundancies.