If an employer adopts a fair redundancy selection process, will the lack of an appeal make dismissals unfair?
No, but the absence of an appeal is one of many factors in determining fairness, held the Court of Appeal in Gwynedd Council v Barratt & others.
The case followed a tribunal's finding that the teacher Claimants were unfairly dismissed, a finding upheld by the EAT and now by the Court of Appeal. The Claimants were dismissed when their school closed and a new one opened on the same site, there was no consultation over the closure and no appeal offered, their applications for new roles at the new school were unsuccessful.
The Court of Appeal rejected various grounds of appeal put forward by the Council. It noted that whilst it would be wrong to find a dismissal unfair following a fair process only because of the lack of an appeal procedure, a tribunal has to have regard to all the relevant circumstances, including any appeal, opportunity to be consulted or to grieve about the process. The tribunal had not erred in finding the dismissals unfair.
The Court restated the classic principles found in Williams v Compair Maxam and Polkey v AE Dayton Services Ltd as setting out the obligations on an employer making redundancies. There was nothing in the Staffing of Maintained Schools (Wales) Regulations 2006 to give Local Authorities an ‘escape route’ from their obligations as employers under the general law, the Council remained the Claimant’s employer for all material.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.