Redundancy selection procedures
Whilst redundancy is a potentially fair reason for dismissal the employer will need to also follow a fair procedure. This should include as a minimum giving advance warning to the employee and consulting with them in relation to the situation and exploring any possible alternatives. The case of Gwynedd Council v Barratt & Hughes considered the procedural issues and in particular whether the failure of the employer to provide an appeal would necessarily lead to a finding of unfair dismissal.
Ms Barratt and Mr Hughes were both PE teachers at a community secondary school which the local Council had decided would be replaced with a new community school providing primary and secondary education. They were informed that they would need to apply for other posts within the new school or face redundancy when the school closure took place. Their applications for other posts were not successful and they were dismissed on grounds of redundancy. Both claimed unfair dismissal.
It was held that the dismissals were unfair. There had been a lack of effective and meaningful consultation and in the Employment Tribunal the lack of any right of appeal was considered to be sufficient to make the dismissals substantively and procedurally unfair. The Court of Appeal has now clarified that whilst the finding of unfair dismissal should stand the absence of an appeal in a redundancy situation did not of itself make the dismissal unfair.
Key takeaway points
When assessing whether the employer has followed a fair procedure the appropriate test is whether it falls within the band of reasonable responses. Each case will depend on its own facts. The statutory test of fairness does not make a reference to the availability of an appeal. However in practice there will usually be a reasonable expectation that an appeal will be available and it will be in the best interests of the employer to provide one so as to reduce the risks of disputes regarding fairness.
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