341: Does a lack of appeal make a redundancy dismissal unfair?

The claimants in the case of Gwynedd County Council v Barratt and another were teachers who had been dismissed by reason of redundancy following a school reorganisation. They had been denied their statutory and contractual rights of appeal and brought claims of unfair dismissal which were upheld by the Employment Tribunal for various reasons. The council appealed on various grounds, including that the Employment Tribunal was wrong to rule that the right to appeal a dismissal should only be refused in ‘truly exceptional circumstances’.

The Employment Appeal Tribunal, and now the Court of Appeal, have dismissed the council’s appeal, finding that the tribunal’s conclusions on overall fairness were not invalidated by its test of ‘truly exceptional circumstances’. The tribunal had not applied a general rule that a dismissal would be unfair if there was no appeal. Instead, it had concluded that in this case, the lack of any appeal, or any opportunity to raise a grievance against the redundancy procedures or to be consulted about the dismissals were substantively and procedurally unfair. In addition, no reasonable employer would have refused to consider an appeal in circumstances where an employee had a clear right of appeal. The tribunal had therefore applied the correct test of overall fairness and properly considered whether the council’s approach fell within the band of reasonable responses.

In summary, the Court of Appeal held that the absence of any appeal or review procedure does not in itself render a redundancy dismissal unfair but is one of the factors to be considered when determining overall fairness.

This case highlights that where an employee is selected for redundancy, the absence of an appeal may not be fatal to the employer’s defence. However, it will be viewed in the context of the overall redundancy process and is just one of the factors which will determine whether a dismissal is unfair.

To minimise the risks of legal action, it is always safest to offer an appeal in any dismissal situation.