In the recent case of Gwynedd Council v. Barratt & others, the Court of Appeal held that the absence of an appeal will not, in itself, render dismissals unfair provided an employer has adopted a fair redundancy selection process. However, the court made it clear that the lack of an appeal will be one of the factors to be considered in determining fairness.
This case involved two employees of a community secondary school. In May 2015, Gwynedd Council announced that the school would be permanently closed in the summer of 2017, and replaced with a new school on the same site. The claimants were unsuccessful in their applications to the new school, and were dismissed for redundancy when the old school closed in 2017. There was no consultation over the closure, and the claimants were offered no appeal. The claimants subsequently claimed they had been unfairly dismissed.
The Employment Tribunal (ET) found that the claimants had been unfairly dismissed, noting that the Council had failed to provide any effective or meaningful consultation. The ET judge also held that it was unfair that Gwynedd Council had failed to provide either claimant with the right to appeal their dismissal, holding that to deny an employee the right to appeal their dismissal required “truly exceptional circumstances” which were not present in this case. The Employment Appeal Tribunal (EAT) upheld the ET’s decision that the claimants were unfairly dismissed.
The Council appealed the EAT’s decision to the Court of Appeal on the grounds that the ET judge had incorrectly applied the test for “truly exceptional circumstances” when considering the fairness of the absence of appeal. In its appeal, it cited the EAT’s decision in Taskforce (Finishing and Handling) Ltd v. Love EATS, in which Lady Smith stated that “it would be wrong to find that a dismissal on grounds of redundancy was unfair because of the failure to provide an employee with an appeal hearing“.
Court of Appeal decision
The Court of Appeal rejected the grounds of appeal forwarded by the Council and upheld the decision that the claimants’ dismissals were unfair. The court agreed that the absence of appeal in redundancy cases does not, in itself, make the dismissal unfair. However, it caveated Lady Smith’s statement that “it would be wrong to find that a dismissal on grounds of redundancy was unfair only because of the failure to provide an employee with an appeal hearing“. This is because the absence of appeal is one of the many factors to be regarded when determining fairness.
Practical implications for employers
As in the recent case of Moore v. Phoenix Product Development, whilst the court concluded that the absence of an appeal is not fatal to the fairness of a dismissal, and there is no rule that a dismissal will invariably be unfair if there is no right of appeal, employers should exercise caution in declining to offer employees a right to appeal. This is so, even where the employer does not believe that the appeal can change the outcome. It will improve the employer’s prospects of successfully defending an unfair dismissal claim if an appeal is offered.