Denying redundancy appeals: slippery slope to unfair dismissal?

In two words, not necessarily. Undoubtedly a relief at a time when the exit from the Covid pandemic and from furlough is likely to involve tricky decisions about whether positions need to go, or headcount needs to come down. 

 

But this is no reason to be complacent. Especially when one long held view has been that truly exceptional circumstances are needed before an employee can be refused the right to appeal a dismissal of any kind. 

 

“Wait a minute – I can understand this if I’ve dismissed someone who’s at fault. At least if I have to reinstate him, because his appeal has succeeded, I won’t need to fill the vacancy I’ve just created. What if there is no vacancy? Surely I can’t be told to reinstate him and sack his colleague instead? Doesn’t it make a mockery of how to run a company, if my economic decisions can be overturned?” 

 

Fair points. Let’s take a closer look at a case by the name of Gwynedd Council v Barratt [2021] EWCA Civ 1322, and find out why the employees in that case should have been allowed an appeal, and were unfairly dismissed because they were not. 

 

The claimants, both teachers, found that their secondary school YYG was closing. A new “all through” school YBI was to be staffed via applications, not via the offer of vacancies. They had known about the situation for many months, and had been given more than 3 months’ notice of redundancy by the local education authority. They complained that they had not been allowed to appeal to YYG’s governing body, despite having a statutory and contractual right to do so. They were told that it would have made no difference because of the school closure, a point that had also served to curtail consultation. But YBI’s secondary education was to be provided from YYG’s former site. 

 

It was noted in particular that when the claimants’ union rep took steps to pursue an appeal by writing to YYG’s governing body, he was not invited to set out grounds. His email was simply batted aside, purportedly because denying an appeal would cause the claimants no disadvantage. 

 

So where are we on “truly exceptional circumstances” for denying an appeal in a redundancy situation? 

 

The answer, in summary, is that if the right to appeal is denied, this does not make the dismissal automatically or invariably unfair. We fall back on the usual fairness test, namely whether the employer’s approach fell within the range of reasonable responses. 

 

Here, consultation had been inadequate. The “fait accompli” attitude over the closure had effectively denied the claimants any opportunity to argue that the dismissals were unfair. YBI’s secondary education was going to continue from YYG’s site. Its recruitment of external candidates was at odds with the ordinary need to prioritise the interests of those at risk of redundancy. Taken together, the denial of an appeal was one of many factors that rendered these dismissals unfair. There was no need to place the “truly exceptional circumstances” test on a high pedestal. 

 

What, then, are the lessons for employers about to bite the bullet and notify definite redundancies, and how to break the news? We may conclude: - 

 

1. Do not feel obliged to offer an appeal against the redundancy decision, but make sure your employment contracts, redundancy policies and handbooks have not already committed you to do so; 

 

2. If an employee seeks to appeal anyway, without having an express right to do so, ask for the grounds and treat any arguable case seriously; 

 

3. Avoid the urge to bat appeal requests away on a knee jerk basis, and never say “you’ve no right” – it might just turn out that the “truly exceptional circumstances” point comes back with a vengeance. 

 

Are you considering the need to create and notify redundancies? Or how best to handle an appeal from someone just made redundant? Contact David Cooper for more assistance on 0121 325 5402.