Redundancy appeals

The Court of Appeal has considered the question of whether a redundancy dismissal without any right of appeal is unfair.

Gwynedd County Council v Barratt and another [2021] EWCA Civ 1322

Facts

This case was brought by two teachers who had been dismissed by reason of redundancy due to the closure of the school where they worked. They were unsuccessful in applying for a role at a new school opening on the same site. The claimants were not given any right of appeal against the decision to dismiss them, in breach of the applicable Welsh education regulations.

The claimants succeeded in their claim for unfair dismissal, and the employment tribunal’s decision was upheld by the Employment Appeal Tribunal (see our previous summary). The employer appealed to the Court of Appeal on a number of grounds, including the tribunal’s finding that there must be “truly exceptional circumstances” to refuse an employee the right of appeal against a decision to dismiss.

Court of Appeal decision

The Court of Appeal has dismissed the appeal, upholding the decision of the EAT that the dismissals were unfair. It decided that the tribunal’s conclusions had not been invalidated by applying a test of “truly exceptional circumstances” for when an employer can refuse a right of appeal. The tribunal had concluded on the facts that the lack of any review or appeal was both substantively and procedurally unfair, in circumstances where the employee had a clear statutory right to an appeal. The tribunal had applied a test of overall unfairness, and had concluded that the employer’s approach was not within the band of reasonable responses.

Consequences of this decision

Although the employer’s appeal was not upheld in this case, the Court’s decision has confirmed that the absence of a right of appeal in a redundancy dismissal will not automatically lead to a finding of unfair dismissal. It is the overall fairness of the procedure that the employer has adopted, including the extent of the consultation with affected employees that will determine whether the dismissal is unfair.

This article is from the September 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.