Employment and Immigration Law Update – Redundancy and alternative employment

The Employment Appeal Tribunal (EAT) has considered whether an employer unfairly dismissed a redundant employee by using an interview process to consider applications for alternative employment.

Gwynedd Council v Barrett & other, UKEAT/0206/18

Facts

The claimants were dismissed for redundancy following the closure of the school where they worked. They had unsuccessfully applied for positions at a new school that was opening on the same site as their original school, following a reorganisation of education provision in the area. All the affected staff were informed that their existing contracts would be terminated at the end of the academic year and they would be made redundant unless they were successful in applying for a suitable alternative post.

The claimants were interviewed for what was essentially their former jobs, but they were unsuccessful and subsequently were given notice of termination. They were not given any right of appeal against the decision to dismiss them, as conferred under applicable Welsh educational regulations.

An employment tribunal upheld the claimants’ unfair dismissal claim, due to the failure to provide the claimants with a right of appeal, the absence of consultation and the manner in which they were required to apply for their own jobs. The Council appealed.

EAT decision

The EAT has dismissed the appeal, upholding the tribunal’s finding of unfair dismissal. In the EAT’s view, the claimants were not applying for a new post following the reorganisation but were effectively applying for their own jobs. The exercise was not a ‘forward looking’ selection process for an alternative role, but was closer to a selection process from within a pool. The claimants had been required to apply for what was the same (or substantially the same) job, rather than a new post, with no proper consultation or right of appeal against the decision provided.

Consequences

In a redundancy situation, it is open to employers to conduct a competitive interview process in order to consider applications for alternative employment for employees whose role is redundant. In this situation, the tribunal considered that the interview process was used as a means to select for redundancy, instead of adopting a selection and scoring process using a pool of potentially redundant employees. The lack of proper consultation and the failure to provide a right of appeal meant that the dismissal was unfair.

It is not necessarily the case that the absence of a right to appeal against a redundancy dismissal will mean that the dismissal is unfair. The Acas Code of Practice (which provides for the right of appeal following disciplinary action) does not apply to redundancy dismissals. However, in the circumstances of this case (and in particular, the right to an appeal under the applicable regulations), it was one of the factors that rendered the dismissal unfair.

This article is from the June 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.