The case of Gwynedd Council v Barratt & Other provides a helpful summary of the key issues to be considered in relation to the fairness of redundancy dismissals. It also clarifies when to use a forward-looking interview process to select employees for redundancy and alternative positions, rather than the more common approach of pooling and scoring.
The Claimants were teachers employed by the local authority to work at a secondary school. In 2015, the Council decided to re-organise primary and secondary provision. This involved the permanent closure of the Claimants’ school, together with a number of others, and replacing them with a new community school on the same site that the Claimants had previously worked.
Between 2015 and 2017, the Council kept the schools updated on the progress of the re-organisation, telling affected staff that all existing contracts of employment would be terminated on 31 August 2017. Staff were also informed that staffing arrangements for the new school would be decided by an application and interview process, with unsuccessful candidates also being made redundant on 31 August 2017, unless they secured an alternative role. The Claimants applied for their jobs at the new school (which were effectively their old jobs). They were unsuccessful in their applications and their employment was terminated on the grounds of redundancy.
The Claimants brought unfair dismissal claims in the Employment Tribunal. The Tribunal commented that the Council’s approach was unusual, providing no opportunity for meaningful or effective consultation – instead, all the Council did was communicate its decisions.
The Tribunal found the process, and the Claimant’s dismissals, unfair. This was on the basis that the Claimants had not been consulted over the Council’s proposals nor offered a right of appeal against their dismissals, coupled with the manner in which the Claimants were required to “apply for their own jobs”, which had not changed in any material way.
Appeal to the EAT
The Council appealed the decision to the EAT, in particular that the Tribunal applied the requirements for fairness too rigidly (essentially, they argued that the above issues were not sufficient to render the dismissals unfair).
The EAT dismissed the Council’s appeal, upholding the Tribunal’s decision on the basis that the Council had proceeded without any consultation (there had merely been a communication), the absence of an appeal, and the approach to selection for positions at the new school. The Tribunal had applied the correct tests and made a reasonable finding.
What does this mean for employers?
There is nothing groundbreaking in this case (and some of the arguments advanced are education-sector specific) but it serves as a useful reminder for employers that the critical issue in any claim for unfair dismissal is whether an employer has acted reasonably and fairly. It also clarifies that, whilst there is no hard and fast rule, in most cases, a pooling and selection process is the correct approach to identify staff for redundancy where the remaining roles are substantially the same. A forward-looking application and recruitment process is likely to be more suited to the scenario where an employer has to appoint to newly created roles.
The EAT also confirmed that whilst failing to offer an employee a right of appeal will not render a dismissal unfair in every case, it may affect fairness depending on the facts. Whilst not legally required in redundancy cases, employers should consider offering an appeal each time, especially where there are any concerns regarding the consultation process undertaken (there is little disadvantage in doing so). It also gives an opportunity to check an employer has done the right thing and an opportunity to put it right if not.
The judgment can be found here.