It is good practice for employers to give employees the right to appeal if they are made redundant. But will the redundancy be rendered unfair if the employer fails to give the right to appeal? Not necessarily, concluded the Court of Appeal in Gwynedd Council v Barratt 2021.

Instead the Court of Appeal concluded that absence of an appeal is just one of a number of factors to be considered in determining fairness.

In Gwynedd Council v Barratt 2021, a school was closing but a new community school was opening on the same site. Teachers were given the opportunity to apply for a job in the new school, but if they were unsuccessful, they would be made redundant (and without the right of appeal)

The original employment judge questioned whether there was a genuine redundancy situation at all, because the old school had immediately been replaced with a new one, which had a similar need for secondary school teachers.

The Judge concluded that the dismissal was unfair, in part because there was no meaningful consultation, and in part because the unsuccessful teachers were not given the right to appeal. The Judge said that it required ‘truly exceptional circumstances’ to refuse the right to appeal against dismissal.

The Court of Appeal concluded that it would be wrong to find that a dismissal on the ground of redundancy was unfair simply because of the failure to provide an employee with an appeal hearing. However in this case, the original employment judge had correctly applied the test of fairness and found that, in this instance, the decision to deny the right to appeal fell outside the band of reasonable responses.

Comment: Employers would be wise to give the right of appeal in all instances in which an employee is dismissed, whether for redundancy or any other reason.

It is worth bearing in mind though, that if the dismissal is simply procedurally unfair, the Tribunal might not make any significant compensatory award, on the basis that procedural unfairness made no significant difference to the ultimate decision.

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