Lack of appeal does not necessarily render dismissal unfair (Court of Appeal)

John Cook

In Gwynedd Council v Barratt and another [2021] EWCA Civ 1322, the Court of Appeal held that the lack of any appeal or review procedure does not of itself render a redundancy dismissal unfair. However, it is one of the factors to be considered when determining the overall fairness of the dismissal.

The claimants were teachers dismissed by reason of redundancy. They had been denied their statutory and contractual right of appeal and brought claims of unfair dismissal, which were upheld by an employment tribunal. The employer appealed against that decision on various grounds, including that the tribunal had erred by holding that there is a requirement of “truly exceptional circumstances” to refuse an employee the right of appeal.

The Court of Appeal dismissed the employer’s appeal, finding that the tribunal’s conclusions on overall fairness were not invalidated by its test of “truly exceptional circumstances”. The tribunal had concluded that the lack of any appeal or review process was substantively and procedurally unfair, and no reasonable employer would have refused to consider an appeal in circumstances where an employee had a clear right of appeal. The tribunal had been concerned not only with the lack of appeal but also of any opportunity for the employees to raise a grievance against the procedures adopted or be consulted about the dismissals. As such, the tribunal had applied a test of overall fairness and considered whether the employer’s approach fell within the band of reasonable responses.

The decision confirms that where the original selection for redundancy is in accordance with a fair procedure, the absence of an appeal is not fatal to the employer’s defence. This follows the approach previously applied by the Northern Ireland Court of Appeal in Robinson v Ulster Carpet Mills [1991] IRLR 348 and the EAT in Taskforce (Finishing & Handling) Ltd v Love EATS/0001/05. Unlike Gwynedd Council, neither case considered circumstances where an employee had a contractual or statutory right of appeal.

Gwynedd Council v Barratt and another [2021] EWCA Civ 1322

John Cook – Solicitor

John Cook

I am a qualified Solicitor with over 30 years’ experience running a business, managing a team, appearing in the Employment Tribunal and advising on almost every conceivable employment law and HR issue. Clients appreciate my down to earth and straight forward approach that allows them to achieve results and manage their organisation more effectively. I take the worry out of employment law and HR issues with a proactive and robust approach.