The Court of Appeal has held in Gwynedd Council v Barratt and anor that the absence of an opportunity to appeal does not by itself make a redundancy dismissal unfair.

It will be one of many factors to be considered in determining fairness.

The claimants, B and H, were employed as PE teachers at a community secondary school which closed in August 2017 and was replaced with a new community school providing primary and secondary education. Staff were told that they could apply to work at the new school but that unsuccessful candidates would be made redundant. B and H were not successful in their applications and were, accordingly, made redundant. They brought claims for unfair dismissal on the basis, amongst other things, that they had not been afforded a right to appeal.

The employment judge found that the dismissals were unfair, relying on factors such as the lack of effective and meaningful consultation. The judge held that it was unfair to deny the claimants their right of appeal, stating that it requires "truly exceptional circumstances" to refuse an employee the right to appeal a dismissal. The EAT dismissed the appeal, and the Council appealed again to the Court of Appeal. In doing so it referred to the EAT's decision in Taskforce (Finishing and Handling) Ltd v Love EATS 0001/05 in which Lady Smith stated that "it would be wrong to find that a dismissal on grounds of redundancy was unfair because of the failure to provide an employee with an appeal hearing".

The Court of Appeal stated that the decision in Taskforce did not lay down a general principle (it has remained unreported for 16 years and is not referred to in academic text), but it agreed with the proposition that in redundancy cases the absence of an appeal does not of itself make the dismissal unfair.  It followed that it would be wrong to find that a dismissal on the ground of redundancy was unfair only because of the failure to provide an employee with an appeal hearing. It dismissed the Council's appeal holding that the employment judge had applied the correct test of fairness and found that, in the particular circumstances of the case, the Council's decision to deny the claimants an appeal fell outside the band of reasonable responses.

Take note: In Barratt a failure to offer an appeal was coupled with lack of effective and meaningful consultation so, on the specific facts of the case, the decision to deny the claimants an appeal fell outside the band of reasonable responses. However, the decision provides useful confirmation that a failure to offer an appeal of a redundancy dismissal will not render such a dismissal unfair, but will only be one of many factors to be considered in determining fairness.

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