Absence of an appeal in a redundancy process
In Gwynedd v Shelley Barratt and Ioan Hughes, the claimants were employed by the council as teachers of physical education. They were dismissed on 31 August 2017, following the school’s closure. They brought claims of unfair dismissal on the basis that they were not given the right to appeal.
School closure
The claimants, Shelley Barratt and Ioan Hughes, worked as teachers of physical education at Ysgol y Gader, a community secondary school. On 19 May 2015, having followed the relevant statutory procedures, Gwynedd council resolved to reorganise the primary and secondary provision in the area.
This reorganisation involved the permanent closure of Ysgol y Gader, together with all nine primary schools within its catchment, and in their place the establishment of a new community all-through school (3–16) called Ysgol Bro Idris.
Information given
Between 19 May 2015 and 1 September 2017, the council kept all the affected schools informed, including the claimants, on the progress of the reorganisation process, including proposed changes and staffing implications. This included informing affected staff:
- That all existing contracts of employment would be terminated as of 31 August 2017.
- That the staffing of the new school would be determined by an application/interview process.
- That unsuccessful candidates would be made redundant as of 31 August 2017, unless they were successfully redeployed at a suitable alternative post within the council.
The council also kept trade unions updated regularly via meetings with its Unions Forum.
Application for new posts unsuccessful
Both claimants were interviewed for posts at Ysgol Bro Idris, the new school, but were unsuccessful.
Notice of redundancy
In May 2017, the claimants were given written notice of termination on the grounds of redundancy with expiry on 31 August 2017, when the school closed.
No appeal process
The claimants presented representation via their union representative to the council, asking why they had not been given the opportunity to make representations or appeal to the governing body. The council stated that by not allowing an appeal, the claimants were not disadvantaged because an appeal would not have been able to reverse the decision to close the school.
Claim of unfair dismissal
The claimants brought claims of unfair dismissal against the council.
The employment tribunal (ET) found that the claimants were not dismissed because of a redundancy situation, rather they were dismissed because of the method the council chose to deal with the redundancy situation.
No effective consultation
The ET stated that, for a process to be fair, an effective consultation process should take place.
In this case, decisions were merely communicated to the claimants. The claimants were not involved, or consulted with, in respect of the decision to dismiss all staff of the 10 schools affected by the reorganisation, and to recruit staff for the replacement school through an application and interview process.
The ET also held that, although the absence of an appeal does not necessarily make every dismissal unfair, there has to be ‘truly exceptional circumstances to refuse an employee the right to appeal against their dismissal’.
Council appealed
The council gave notice of appeal to the employment appeal tribunal (EAT), which was dismissed.
However, a further appeal was granted at the court of appeal (CA).
The grounds of appeal made by the council were that:
- The ET erred in law in finding that the dismissals were unfair for a number of reasons, including the fact that it had failed to say who an appeal should have been made to.
- It was an error in law to apply a test of ‘truly exceptional circumstances’ in determining the fairness of the lack of a right to appeal.
- It was an error of law for the ET not to make a 100% reduction under Polkey given employment could not be offered to the claimants. (A Polkey reduction is a reduction in the compensatory award made to an employee in a successful claim for unfair dismissal to reflect the likelihood that there would have been a fair dismissal in any event.)
View of the court of appeal
The view of the CA was that the council, as employer, remains subject to its obligations under the Employment Act 1996. These include, where teachers are made redundant, the obligation to ensure that a fair process is followed.
The CA agreed with the ET that ‘it was substantively and procedurally unfair to deny the claimants their right of appeal and that no reasonable employer would refuse to consider an appeal in circumstances where an employee had a clear right of appeal’.
The CA found that the judge in the ET was entitled to take the view that it was impossible to formulate, or at any rate to answer, the hypothetical question of what percentage chance either of the claimants would have had of being dismissed even if a correct process had been followed.
Summary
Schools should ensure that a fair process is followed during any redundancy and/or reorganisation. A fair process includes:
- Carrying out a meaningful consultation process.
- Having pools of affected staff.
- Having clear selection criteria.
- Considering suitable alternative employment.
In addition, while the absence of an appeals process does not make a dismissal for redundancy automatically unfair, schools are advised to provide employees the right to appeal, as part of a fair process.
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