Redundancy Pitfalls: Lessons from Barratt & Other v Gwynedd Council
The Claimants in Barratt & Other v Gwynedd Council were teachers employed by Ysgol y Gader School. In 2015, Gwynedd Council decided to close Ysgol y Gader School and replace it with a new community school called Ysgol Bro Idris at the same site.
Teachers at Ysgol y Gader School were informed that their contracts of employment would be terminated as of 31 August 2017, and that they would have to apply and interview for new positions at Ysgol Bro Idris. The Claimants applied for positions at the new school, but were unsuccessful and were therefore made redundant on 31 August 2017.
The Claimants raised a query through their trade union representative to ask why they had not been given the opportunity to make representations or appeal in respect of the decision to dismiss, seeking to rely on Regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006 ("the 2006 Regulations"). The Chairperson of the Governing Body of Ysgol y Gader School responded to inform the Claimants that they had not been disadvantaged by the failure to allow an appeal, as the outcome would have been the same regardless, due to the fact that their redundancies had been caused by the closure of Ysgol y Gader School. He maintained that it would have been impossible to reverse this decision to avoid redundancies. The Claimants brought claims for unfair dismissal.
The Tribunal was unconvinced that a business closure had, in fact, occurred, citing that the day after the closure of Ysgol y Gader School, liabilities and assets transferred immediately to Ysgol Bro Idris, and that teachers would still be required in the new organisation. As such, the Tribunal did not agree with the Respondent’s assertion that the redundancies were “inevitable”.
Furthermore, the Tribunal found that the Respondent had failed to follow the correct process for making staff redundant, by circumventing: consultation with pools of affected staff; establishing selection criteria, and offering suitable alternative employment where possible. Asking employees to reapply for their own jobs (or very similar roles), it said, “abrogates the employer's responsibilities and seeks to circumvent employment rights”. The Tribunal described the view that the Claimants had not been disadvantaged by the Respondent’s failure to allow an appeal as "extraordinary", "ill-conceived", "emphatically wrong" and “procedurally unfair”. The Respondent’s application for a 100% Polkey reduction on the grounds that the Claimants would have been dismissed even if given the opportunity to appeal was dismissed.
Gwynedd Council brought an appeal on the grounds that the Tribunal had erred in:
- concluding that there was no redundancy situation;
- finding that the Claimants had a right of appeal against the decision not to appoint them;
- concluding that any unfairness arose from the procedure used in order to determine which candidates should be appointed;
- concluding that the dismissal was rendered unfair by the absence of any right of appeal; and
- failing to make a Polkey deduction.
The Employment Appeals Tribunal held that the Tribunal did not err in its approach and dismissed Gwynedd Council’s appeal.
What does this mean for you or your business, and what do you need to be doing now?
Employers would be well advised to seek guidance if planning to make redundancies, as there are a number of risks involved, which could leave the business exposed to claims. As Barratt & Other v Gwynedd Council demonstrates, employers must be wary of denying employees the right to appeal and, where possible, should offer suitable alternative employment. Employers should also be aware of what constitutes a genuine redundancy situation, and should seek advice if unsure of the correct process to follow when making redundancies.
You can read the Employment Appeal Tribunal summary here.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.