November 28, 2021

Volume XI, Number 332

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Employer’s Case for Fair Dismissal Lacks Appeal, Finds Court (UK)

The Court of Appeal confirmed in Gwynedd Council – v – Barratt and Hughes last month that the failure to offer an employee the right to appeal against his dismissal will not inevitably make the termination unfair but is merely one piece of the puzzle in a range of factors which are considered when determining the issue of statutory fairness.

Barratt and Hughes were both employed as PE teachers at a community school run by Gwynedd Council in Wales.  When the Council decided on the closure of various schools in order to make way for a shiny new model on the same school site, it announced that all teachers’ contracts would be terminated.  They were actively encouraged to apply for posts at the new school as a suitable alternative, and any candidates who were not redeployed would be offered redundancy.

The success rate of teachers securing posts at the new school was generally high.  To their dismay, however, neither Barratt nor Hughes was offered employment at the new school and both were instead made redundant.  Each claimed unfair dismissal.

The Employment Tribunal in Wrexham was heavily critical of the redundancy process.  It took the view that the claimants had essentially been required to apply for their own jobs, and that there had been an absence of either genuine consultation or any right of appeal.  As a result, Barratt and Hughes were found unfairly dismissed.  The Employment Appeal Tribunal rejected the Council’s challenge to this.  While the circumstances were unusual, it was not a case where they were so exceptional that it could truly be said at the time of the dismissals that those failures could make no difference to the outcome.

Nothing daunted, the Council then went to the Court of Appeal where it asserted that the ET should have followed the decision in Taskforce (Finishing & Handling) Limited – v – Love in 2005.  There Lady Smith had said “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”.

Referencing the Taskforce decision, the Court of Appeal here took the view that there is no general principle that a dismissal will be categorically unfair if there is no opportunity to appeal, stating narrowly “if the original selection for redundancy was in accordance with a fair procedure, the absence of an appeal is not fatal to the employer’s defence”.  Even though it succeeded on that narrow point, however, the Council’s jaunt up the judicial system still ended unhappily as the dismissal was found unfair on other factors anyway, namely the lack of meaningful consultation and the conduct of the redundancy itself.

Lessons for employers

  1. This case confirms the existing law that a failure to offer a right of appeal will not automatically make a dismissal unfair.  However, the line between “automatically” and “almost inevitably” is a very thin one.  It will only be in very unusual circumstances where the denial of a right to appeal will not prejudice the fairness of the dismissal.  [NB: For these purposes, denying the right and not expressly offering it are separate things – there is no legal obligation to make an express offer of a right of appeal.]

  2. The right of appeal is particularly important in circumstances where the grounds for dismissal are perhaps more personal to the employee than a redundancy, such as on the basis of performance, misconduct or sickness.  Where dismissals are driven by an unarguable redundancy situation (the closure of a site or a whole business line, maybe), then there may be less benefit to be gained from an appeal and so less imperative to provide that opportunity.  In the case of large scale redundancies made against pre-agreed criteria, for example, allowing an avenue of appeal creates the very unattractive prospect for the employer of a whole round of leap-frogging appeals as those initially selected try to drop others into the redundancy zone in their place, and those others then appeal to get back out of it, potentially at the cost of yet further employees who then make their own appeals, and so on.

  3. This does not mean that individual decisions in collective redundancies are beyond challenge, either in consultation or through the ET.  If the selection criteria have been applied inaccurately or in a biased or subjective manner, those dismissals can certainly still be unfair.  Even if the employer does not formally offer an appeal, that does not stop the employee making one, ideally supported by his arguments and evidence as to why his scoring is wrong either in absolute terms or relative to a more successful colleague.  Any refusal by the employer to consider those representations (assuming they are made on a timely basis, and especially if that is before the employment ends) would then go into the mix in the ET’s decision.

But the Court of Appeal’s acceptance here that a right of appeal is not an absolute pre-requisite of a fair dismissal in all cases must be seen in its true light – that doing without will be safe only in exceptional circumstances.  Far better for employers to heed the words of the original Employment Judge in Wrexham: 

“With the greatest of respect to Lady Smith [NB: This is judicial shorthand for “I cannot see how she can possibly have reached that position”], had the Taskforce case been decided more recently then I am sure the outcome would have been different”, and then “Much in employment practices and the case law has moved on since 2005.  The right to appeal any dismissal is now so ingrained in employment practices that it is rare that an employee would be dismissed without being given the right of appeal.  Such a right has become second nature for all but the most cavalier employer”.

 Abigail Kennedy​ contributed to this article.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 279
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