260: Employees asked to re-apply for former jobs during redundancy exercise were unfairly dismissed

In Gwynedd Council v Barratt and others, the EAT has upheld the decision of an Employment Tribunal that teachers who were asked to re-apply for their former jobs during a redundancy exercise had been unfairly dismissed.

The claimants in this case were teachers employed by Gwynedd Council. As part of a restructuring of school services, the council closed the school in which they worked and re-opened them at the same location as a new school. Rather than applying a selection process to determine which teachers would be made redundant, the council used an application and interview process. The claimants applied for positions in the school on the same site they had previously worked but were unsuccessful and were made redundant. They were not offered the opportunity to appeal against their dismissal and the council did not consult any further with them. On querying this, they were informed that they had not been disadvantaged by the lack of appeal, since the outcome would have been the same in any event due to the closure of their school, a decision which could not be reversed. The teachers claimed unfair dismissal in the Employment Tribunal.

In a decision which was highly critical of the procedure followed by the council, the Tribunal held that the dismissals were unfair. It did not agree with the council that the redundancies were inevitable, since the day after the school closed, assets and liabilities were transferred to the new school, which still required teachers. The procedure followed by the council was unfair because it had circumvented consulting with pools of affected staff, establishing selection criteria, and offering suitable alternative employment where possible. Asking employees to apply for their own, or very similar, roles abrogated the council’s responsibilities and sought to circumvent employment rights. The Tribunal also described the view that the claimants had not been disadvantaged by the failure to follow an appeals procedure as ‘extraordinary’ and procedurally wrong.

The council appealed against this decision, arguing that the Tribunal had applied the rules on procedural fairness too rigidly in its particular circumstances. However, the EAT agreed with the Tribunal’s reasoning and upheld the ruling. The fact that the decision to close the school had been communicated without any consultation at all and the absence of an appeal were factors which clearly made the dismissals unfair.

This case highlights that when considering a claim for unfair dismissal, the key question for the Tribunal is whether an employer has acted fairly and reasonably. It is unlikely that a redundancy dismissal will be fair where an employer fails to consult or offer an appeal. Although it may not be unreasonable to interview employees for newly created positions which are not similar to the redundant roles, it is unlikely to be fair to ask employees who are at risk of redundancy to apply for the jobs they were previously doing.