When dismissing employees for redundancy, employers must act fairly and reasonably by applying a fair procedure. In Gwynedd v Barratt and anor, the Employment Appeal Tribunal (EAT) held that the absence of any consultation, the use of a competitive interview process and the failure to provide a right of appeal rendered the dismissals unfair.
As part of a reorganisation of educational provision in the local area, the Council announced the closure of a community secondary school and nine primary schools which would be replaced by a new community school. The Council informed the affected schools of the reorganisation process including that staffing of the new school was to be determined by an application/interview process and that staff would be dismissed on 31 August if they were not successfully redeployed.
Following her interview, Ms Barratt was told that she had been unsuccessful and she was given notice of termination on the ground of redundancy. She queried the fact that she had not been given any right of appeal to which she had a statutory right under regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006.
She was told, however, that it would not have made any difference as the dismissals were the result of the school closure and no appeal panel could have reversed that decision in order to avoid dismissals.
Along with another colleague who had also been unsuccessful, she brought a claim of unfair dismissal.
The tribunal was highly critical of the failure to provide a right of appeal.
It said that the Council had wrongly interpreted the decision to close the school as meaning that their dismissals were inevitable. It was not for the Council to say what the teachers’ grounds of appeal would have been about without asking them. Denying the teachers a right of appeal was not within the band of reasonable responses.
Furthermore, the tribunal considered that the fact that the teachers were required to apply for jobs at the new school demonstrated either an identical job or substantially similar job existed, or at the very least the new roles amounted to suitable alternative employment. In addition, the Council had also failed to consult with the teachers. As such, the tribunal held that the dismissals were unfair.
The Council appealed on the grounds that the decision to dismiss lay not with the Council but with the Governing Body of the School under Regulation 17 of the 2006 Regulations; the tribunal had applied a rigid approach to the need for an appeal and that the tribunal was wrong to apply the guidance from the case of Williams v Compair Maxam where the process for selection for redundancy was to apply for different jobs.
Dismissing the appeal, the EAT considered that the Council could not rely on regulation 17 of the 2006 Regulations to argue that it was not the relevant decision maker in circumstances where it was clear that the dismissals were as a result of the Council’s decision to close the school.
The tribunal had applied the correct test when considering the failure to offer the opportunity to appeal. It had expressly stated that it did not consider the absence of an appeal would render every dismissal unfair. Even though the statutory right to appeal could only be invoked against the Governing Body of the school, the absence of an appeal to the Council was unfair in this case.
As to the test of reasonableness the EAT found that the tribunal had not made an error of law by applying the guidance in Williams. It was clear that the tribunal was concerned about the failure to consult employees about the way the redundancy process would be carried out as well as the absence of any opportunity to challenge their dismissal. The fact that the Council chose a forward-looking interview process did not mean that a failure to consult was not a relevant consideration.
This decision is a timely reminder that employers must follow a fair procedure when dismissing employees for redundancy and that using an interview process for selection for redundancy does not necessarily absolve the employer of their duty to consult employees about the redundancy process or deny employees a right of appeal.