It has been a difficult time for those working throughout the education sector. The pandemic has, of course, presented unique challenges and changes to the ways schools operate, which have increased costs. Independent schools are also facing uncertain times with measures being considered such as removing their charitable status and VAT being applied to fees.

Difficult times can lead to difficult decisions needing to be made, such as reorganisations, changes in staffing and redundancies. Such steps need to be taken in accordance with statutory requirements, and the particular regulatory obligations to employees that apply in the education sector. Getting these processes wrong can lead to additional expense in dealing with disputes with employees.

A recent Court of Appeal (1) decision serves as an important reminder of the weight of these obligations, confirming that two teachers at a community school were unfairly dismissed by reason of redundancy.

The school closed, along with others in the local area, during a reorganisation of local education provisions, with a new school to be opened at the same location. Staff employed at the schools were informed that existing employment would be terminated, employment at the new school would be determined by an application and interview process, and that, unless suitable alternative employment could be found within the local authority, unsuccessful candidates would be made redundant.

The two teachers in question were unsuccessful in the application process and raised claims of unfair dismissal. The Court of Appeal agreed that the teachers had been unfairly dismissed due to a lack of fair process when effecting the redundancies. Elements of the process which were highlighted as being unfair included:

  • a general lack of effective consultation with staff over decisions, the application/interview process and selection criteria for the vacancies in the ‘new' school;
  • a lack of a clear pool of candidates for redundancy, selected using measurable, objective criteria;
  • ignoring established methods of dealing with redundancy;
  • not seeking to minimise redundancies by offering suitable alternative employment; and,
  • the lack of an appeal/review process once the decision to dismiss had been reached.

The Court of Appeal also highlighted that employers must usually prioritise employees at risk of redundancy over external candidates when filling vacancies, where that vacancy constitutes suitable alternative employment. Employers in the education sector should be aware of this if there are vacancies in other schools within the group when a redundancy process at a school is underway.

Any dispute with an employee is time consuming and resource heavy. The best way to reduce the risk of a dispute is to take time and care over every stage of the redundancy process, to ensure that redundancy decisions are made fairly and, crucially, follow a fair procedure throughout. Remember, too, that additional procedural requirements may apply where either there may be a significant number of redundancies or a union is recognised, whether voluntarily or formally.

Footnotes

1 – Gwynedd Council v Barratt and Hughes, Court of Appeal (Civil Division) [2021] EWCA Civ 1322, 2021 WL 03913528

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