Redundancy Appeals Process
While redundancy is a potentially fair reason for dismissal, as an employer you will need to also show that a fair procedure has been followed. This may in some circumstances involve a pooling and selection process. It will always be expected that an employer should, as a minimum, provide advance warning to the employees and consult with them in relation to the situation, so as to explore whether there are any possible alternatives.
In Gwynedd Council v Barratt & Hughes the redundancy procedure followed by the employer was challenged on a number of grounds including the fact that the employer had failed to provide any opportunity for the employees to appeal against the final decision to make them redundant. It was argued that the failure to provide an appeal was so fundamental it had to be regarded as fatal to the fairness of any dismissal process.
Facts
Ms Barratt and Mr Hughes were both PE teachers at a community secondary school which the local council had decided would be replaced with a new school providing primary and secondary education. They were informed that they were at risk of redundancy, and they would need to apply for posts within the new school. Their applications for other posts were not successful and they were dismissed on grounds of redundancy.
They were not given an opportunity to appeal the dismissal and raised this with their employer who apologised for the oversight but said that it wouldn’t have made any difference to the outcome because their ‘dismissals were caused by the closure of the school and that no appeal panel would have been able to reverse the fact of closure and thus avoid dismissals’.
Both claimed unfair dismissal.
Decision
It was held that the dismissals were unfair and that there had been a lack of effective and meaningful consultation. The employment tribunal considered that the school had attempted to ‘circumvent employment rights’ by adopting a procedure which placed staff at risk of redundancy and then simply told them to apply for other posts at the school which was replacing the one in which they had worked.
It was also critical of the employer for not providing any form of an appeal process that the employees could follow which it considered would in any event make the dismissals unfair.
The decision was the subject of an appeal and the case proceeded to the Court of Appeal.
The appellate court has confirmed that while the unfair dismissal conclusion reached by the employment tribunal should stand, considering there were a number of faults with the process followed, the absence of an appeal in a redundancy situation would not necessarily make the dismissal unfair.
Key points
When assessing whether the employer has followed a fair procedure, the appropriate test is whether it falls within the band of reasonable responses. Each case will depend on its own facts.
The statutory test of fairness does not make a reference to the availability of an appeal. Where there has been full and proper consultation about the redundancy situation the employee will have already had the opportunity to challenge their selection and ask to be considered for alternative roles.
However, in practice an appeal will usually be offered as there will be an expectation that it will form part of the process. It will often be in the best interests of the employer to provide one too. It not only reduces the risks of disputes regarding fairness, but it also provides an opportunity for prior procedural errors to be corrected which can potentially turn what would have been an unfair dismissal into a fair one.
How Brexit has affected the recruitment process
It’s easy to get lost in news, buzzwords and legalese surrounding Brexit, but it’s vital for organisations to keep its implications front of mind to avoid legal pitfalls.
To cut through the ‘noise’, here are the top five actions to take to ensure your organisation stays on top in the post-Brexit era:
- Recruitment and application forms
Check all application forms and online documents are up to date. It’s recommended that application forms or job advertisements don’t require candidates to state their nationality and/or if they have the right to work in the UK. Also avoid asking about their UK immigration status during the initial interview, because if you later reject them and they didn’t have the right to work in the UK, you could face a potential discrimination claim.
- Onboarding process
Ensure your onboarding process is fit for purpose and transparent. Are your offer letters and contracts of employment watertight? Outline any conditions to which the offer is subject, for example, the right to live and work in the UK. Is there a responsibility on the worker to update you of changes in their circumstances, including, but not limited to, their immigration status or change of address
- Training of staff
Train your staff on how to conduct right to work checks correctly and provide them with regular updates. Your processes are only as good as your staff. Right to work checks should be conducted prior to employment commencing. Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks.
There is no mandatory requirement for retrospective right-to-work checks to be conducted on EEA citizens who were employed up to and including 30 June 2021. Additionally, retrospective checks where the Covid-19 adjusted measures were used are no longer necessary. Provided employers conducted the initial right to work checks correctly prior to employment commencing, they will maintain a continuous statutory excuse against liability for a civil penalty, in the event that they are found to have employed an illegal worker.
- To sponsor or not
If you don’t yet have a sponsor licence but anticipate needing to recruit EU employees, consider applying for a sponsor licence. Standard processing time is eight weeks, but this does not include the time taken to prepare an application and gather the necessary documents.
The Home Office can conduct a pre-licence compliance visit so it is important to ensure you have the necessary HR systems in place. If your intention is to sponsor an individual and that’s the reason for your sponsor licence application, consider at the outset of the recruitment process what evidence you need to retain in order to meet Home Office requirements.
- Future plans
What are your future recruitment plans? Will you need to sponsor individuals? Do you know what immigration status permit is required for individuals to work without the need for sponsorship? Are you moving to a hybrid way of working? Will some staff be based at home and/or in the office? These are points that need to be thought about when considering the above issues. It may be helpful to produce written guidance.
