Gwynedd Council v Shelley Barratt & Anor (REDUNDANCY)

In a redundancy dismissal, fairness remains an overall assessment under section 98(4) of the Employment Rights Act 1996. The absence of an appeal, consultation, review, or other usual procedural step is not automatically decisive and does not require proof of exceptional circumstances. It is, however, capable of rendering a dismissal unfair when assessed with all the circumstances.

Guidance on redundancy selection states standards of behaviour, not mandatory legal requirements. Its suitability depends on the exercise being undertaken. Consultation may remain relevant where employees are required to compete for roles following a reorganisation, particularly where the roles are identical or substantially similar and the employer has a role in possible alternative employment.

The claimants were teachers employed by a local authority at a community school which closed as part of a reorganisation. A new school opened at the same location. The claimants unsuccessfully applied for posts there and were dismissed for redundancy.

The Employment Tribunal held the dismissals unfair. It relied on the absence of consultation, appeal or review, and the requirement that the claimants apply for their own or substantially similar jobs. It declined a Polkey deduction.

The authority appealed, contending that the Tribunal had treated redundancy guidelines and an appeal right as inflexible legal requirements, misunderstood the governing body's role, and erred in refusing a deduction. The central issue was whether the Tribunal had applied the statutory test of fairness under section 98(4) of the Employment Rights Act 1996.

1. Appeal dismissed. Read fairly and as a whole, the Tribunal had applied the overall fairness test in section 98(4) of the Employment Rights Act 1996. Its references to an appeal and to established redundancy procedures did not impose mandatory rules or treat their absence as automatically unfair.
2. The Tribunal's phrase that truly exceptional circumstances were required to refuse an appeal was not endorsed. There is no exceptionality test and no rule that a redundancy dismissal is automatically unfair merely because no appeal is offered. The question remains whether the employer acted reasonably in all the circumstances, having regard to equity and the substantial merits. On the facts, the Tribunal was entitled to regard the absence of any effective consultation, appeal, grievance or review as materially unfair.
3. The statutory appeal under Regulation 17 could not directly be invoked against the local authority where no governing-body determination had been made. Nevertheless, the Tribunal could take account of the employees' ordinary statutory and contractual expectation of an appeal when evaluating the fairness of the authority's own dismissal process.
4. The Tribunal had not treated Williams guidance as law. Such guidance comprises standards of behaviour and may not fit a reorganisation involving appointments to new roles. That did not make consultation irrelevant. The Tribunal could find unfairness where there had been no consultation at all and the employees were required to apply for identical or substantially similar posts. The authority also retained a possible nomination role under Regulation 12 of the Staffing of Maintained Schools (Wales) Regulations 2006.
5. Closure of the old school constituted a genuine redundancy situation under section 139. The opening of a different school immediately afterwards did not negate that conclusion. The Tribunal was also entitled to find that dismissal was not inevitable and that the fundamental procedural defects made a Polkey assessment impossible. No deduction was required.

• Employment Appeal Tribunal: Appeal dismissed: the Employment Tribunal had not erred in its application of section 98(4) of the Employment Rights Act 1996.
• Employment Tribunal, Wrexham: Held the claimants unfairly dismissed for redundancy and declined a Polkey deduction. The lower decision's citation was not stated in the judgment.