• Will a dismissal for redundancy be unfair if the employer does not allow an appeal?

    This was the question facing the Court of Appeal in the recent case of Gwynedd Council v Barratt and another.

    The short answer is – not necessarily, but as you will see from the article below, it will depend upon all the circumstances.

    What happened in the case of Gwynedd Council v Barratt and another?

    The case involved two PE teachers at a secondary school (School A). The Council announced in May 2015 that the school would permanently close on 31 August 2017. It  would then be replaced with another school (School B) which provided primary and secondary education. The staff were told that they could apply for positions in the new school, and that those who were unsuccessful would be made redundant.

    The Claimants were unsuccessful with their applications to School B and were made redundant on 31 August 2017. They brought claims for unfair dismissal on various grounds, including that they had not been given a right to appeal against their dismissals.

    Decision and appeal

    The Employment Tribunal in the first instance, found that the dismissals were unfair for various reasons, including the Council’s lack of meaningful and effective consultation over the closure of School A. The Tribunal held that it was substantively and procedurally unfair to deny the Claimants their right of appeal, stating that it would only be necessary in “truly exceptional circumstances” to deny an appeal.

    The Council appealed the decision to the Employment Appeal Tribunal and then the Court of Appeal. The Council argued that it was wrong for the Tribunal to determine the fairness of not allowing an appeal by applying a test of “truly exceptional circumstances”.

    The Court of Appeal agreed that the absence of an appeal in an otherwise fair redundancy process does not of itself render a dismissal unfair. It is, however, one of many factors to be considered when determining fairness.

    The Court of Appeal held that on the specific facts of this case, the Council’s decision to refuse an appeal fell outside the band of reasonable responses and made these two dismissals unfair.

    What does the decision in Gwynedd Council v Barratt and another mean for employers?

    This decision supports previous case law, which says that on its own, not allowing an appeal does not automatically make a dismissal for redundancy unfair.  However it may affect fairness depending on all the facts.

    The overall test for fairness remains whether the dismissal is reasonable and fair in all the circumstances.

    Many employers offer employees the opportunity to appeal against a redundancy dismissal and we would recommend this as a matter of good practice. Allowing an appeal can help to prevent matters escalating and ending up in an Employment Tribunal. It is also always important to check that employees do not have a contractual right of appeal.

    If you are considering making redundancies and would like any further information on how to carry out a fair process, then book a free 30-minute consultation with a member of the Brachers Employment team.

    This content is correct at time of publication

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