While redundancy is a potentially fair reason for dismissal, the employer will need to also show that a fair procedure has been followed. This may in some circumstances involve a pooling and selection process. It will always be expected that an employer should, as a minimum, provide advance warning to the employees and consult with them in relation to the situation, so as to explore whether there are any possible alternatives.
In Gwynedd Council v Barratt & Hughes the redundancy procedure followed by the employer was challenged on a number of grounds including the fact that the employer had failed to provide any opportunity for the employees to appeal against the final decision to make them redundant.
It was argued that the failure to provide an appeal was so fundamental it had to be regarded as fatal to the fairness of any dismissal process.
Ms Barratt and Mr Hughes were both PE teachers at a community secondary school which the local council had decided would be replaced with a new school providing primary and secondary education. They were informed that they were at risk of redundancy and they would need to apply for posts within the new school. Their applications for other posts were not successful and they were dismissed on grounds of redundancy.
They were not given an opportunity to appeal the dismissal and raised this with their employer who apologised for the oversight, but said that it wouldn't have made any difference to the outcome because their 'dismissals were caused by the closure of the school and that no appeal panel would have been able to reverse the fact of closure and thus avoid dismissals'.
Both claimed unfair dismissal.
It was held that the dismissals were unfair and that there had been a lack of effective and meaningful consultation. The employment tribunal considered that the school had attempted to ‘circumvent employment rights’ by adopting a procedure which placed staff at risk of redundancy and then simply told them to apply for other posts at the school which was replacing the one in which they had worked.
It was also critical of the employer for not providing any form of an appeal process that the employees could follow which it considered would in any event make the dismissals unfair.
The decision was the subject of an appeal and the case proceeded to the Court of Appeal.
The appellate court has confirmed that while the unfair dismissal conclusion reached by the employment tribunal should stand, taking into account there were a number of faults with the process followed, the absence of an appeal in a redundancy situation would not necessarily make the dismissal unfair.
When assessing whether the employer has followed a fair procedure, the appropriate test is whether it falls within the band of reasonable responses. Each case will depend on its own facts.
The statutory test of fairness does not make a reference to the availability of an appeal. Where there has been full and proper consultation about the redundancy situation the employee will have already had the opportunity to challenge their selection and ask to be considered for alternative roles.
However, in practice an appeal will usually be offered as there will be an expectation that it will form part of the process. It will often be in the best interests of the employer to provide one too. It not only reduces the risks of disputes regarding fairness, but it also provides an opportunity for prior procedural errors to be corrected which can potentially turn what would have been an unfair dismissal into a fair one.
Gearalt Fahy is a partner in the employment unit at Gateley PLC