Once you have gone through a redundancy procedure, do you need to offer an appeal process after the redundancy dismissal’s have been made?
The starting point is that there is no legal obligation to offer an appeal against dismissal in a redundancy situation, however there may be some advantages in doing so.
As most employers are aware the fundamental guide to dismissal’s is contained within the ACAS code of practice and the ACAS Code recommends employers have an appeal process. But that does not apply to redundancy dismissals. There is an ACAS guide on redundancy, which says it’s good practice to offer an appeal — but unlike the official ACAS Codes of Practice, it has no official legal significance.
Employers should also look at their own policies and procedures, or any collective agreements that may have an impact on redundancy appeals. If your redundancy policy gives a right of appeal, then you should allow for one (assuming the employee has over two years’ employment and qualifies for unfair dismissal rights). If you do not follow your own procedure, there’s a strong possibility that the dismissal could be deemed unfair.
In Robinson v Ulster Carpet Mills, three employees were dismissed due to redundancy. They claimed that they had been unfairly dismissed because they were not allowed a right of appeal, even though employees dismissed for misconduct did have such a right.
The Court of Appeal in Northern Ireland said that in the absence of special facts, an appeal procedure was not required before a dismissal for redundancy could be found to be fair.
Although that case is almost 30 years old, and is from Northern Ireland and so not binding in England, Scotland, or Wales, the principle has been approved in several cases since then, most recently in June 2020 by the President of the Employment Appeal Tribunal in Gwynedd Council v Shelley Barratt.
Also allowing an appeal also has the advantage of fixing possible procedural flaws. If the tribunal thinks the employee was not given a reasonable opportunity at the beginning to challenge their redundancy scores. The absence of an appeal might mean that a small procedural flaw is enough to make a particular dismissal unfair, whereas if there’d been an appeal process and the employee had been given a fair chance to raise whatever their issue was, that’s could possible avoid a tribunal finding the dismissal was unfair.
Consequently, there is a very good argument against having an appeal process in redundancy dismissals. Unlike performance and conduct dismissals, no other person is likely to be affected by a dismissal being reversed on appeal, in redundancy situations other people could be affected. For example Person A who had been through the redundancy scoring process and came out with a higher score, but now finds themselves being told they are redundant because Person B who originally scored lower than them has been allowed back on appeal.
There is a necessity for finality in redundancy selection processes, and appeal processes destabilize that finality. There is also a concern that then the Person A would exercise the right to appeal.
How can we help if you are in similar circumstances?
If you have any further questions, please contact our office on 0161 250 7771 for a free telephone consultation and we can then advise you based on your specific circumstances.