- Unfair Dismissal
- Right of appeal
- Determining fairness in the circumstance under 98(4) of ERA 1996
The absence of an opportunity to appeal does not of itself make a redundancy dismissal unfair; absence of an appeal is one of many factors to be considered in determining fairness. In the instant case, an employment judge was entitled to conclude that two teachers, who had not been offered an opportunity to appeal, were unfairly dismissed by reason of redundancy following the closure of their school. The 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 teachers an appeal fell outside the band of reasonable responses.
The Respondents were employed as PE teachers at a community secondary school. In May 2015 the Council announced the school’s permanent closure on 31 August 2017, to be replaced with a new community school providing primary and secondary education. Staff were informed that they could apply to work at the new school but that unsuccessful candidates would be made redundant. The vast majority of teachers were successful in their applications to the new school. However, the Respondent were not, and were duly dismissed for redundancy on 31 August 2017. They subsequently claimed unfair dismissal on the basis (among other things) that they had not been afforded a right to appeal.
The employment judge expressed some doubt as to whether there was a genuine redundancy situation, given that the old school had immediately been replaced with a new one, which had a similar need for secondary school teachers, including PE teachers. Nevertheless, since the parties had conceded the point, the judge was prepared to categories the dismissals as redundancy dismissals. The employment judge went on to find that those dismissals were unfair, relying on factors such as the Council’s lack of effective and meaningful consultation. In particular, the judge held that it was substantively and procedural 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 Council’s appeal and the Council appealed to the Court of Appeal, arguing that the employment judge had erred by applying a test of ‘truly exceptional circumstances’ in determining the fairness of the lack of an appeal. It drew support from 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 observed that the EAT’s decision in Taskforce has remained unreported for 16 years and is not referred to in academic text. That suggested that it does not lay down a general principle. The Court nevertheless agreed with the proposition, set out in Taskforce, that in redundancy cases the absence of an appeal does not of itself make the dismissal unfair. It followed from this 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. The inclusion of the word ‘only’ was an important qualification to Lady Smith’s statement in Taskforce. As Lady Smith had said in the previous sentence, the absence of an appeal is one of the many factors to be considered in determining fairness.
As for the instant case, the Court of Appeal was entirely in agreement with the EAT that, on a fair reading of the employment judge’s judgment as a whole and notwithstanding the reference to ‘truly exceptional circumstances’, the judge was not applying a general rule that a dismissal would automatically or almost invariably be unfair absent an appeal. Instead, 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. The Court therefore dismissed the Council’s appeal.