The claimants in this case were teachers who were employed by the Respondent Council to work at Ysgol y Gader School (School 1).   There was a reorganisation of schooling within the council area and this involved the permanent closure of School 1 (alongside 9 primary schools within its catchment area) and the creation of Ysgol Bro Idris (School 2). The council created a temporary governing body for School 2 to be in charge of the staffing structure for the formal opening of the school in September 2017.

The process for the staff of School 1 was that they would be kept informed of the reorganisation process prior to September 2017.  The staff of School 1 were informed that all existing contracts would be terminated on 31st August 2017 but that the staffing in School 2 would be determined by an application and interview process whereupon successful candidates would have a new contract and unsuccessful candidates would be made redundant.  The claimants were unsuccessful in their applications for positions within School 2.

The refusal also doubled up as notice that redundancy would take effect on 31st August 2017.  The claimants queried this decision especially the fact that they had not been given the opportunity to make representations or appeal the decision to dismiss.  The Chair of the Governing Body of School 1 apologised for the failure to allow representations or appeal but stated that the failure did not cause any disadvantage to the claimants and their appeals would have made no difference as any appeals panel could not have stopped the closure of School 1.

The Tribunal found in favour of the claimants claims of unfair dismissal, on the basis that they were being required to apply for an identical job or, substantially the same job.   They also stated that there was a failure to follow the correct process within the regulations (Staffing of Maintained Schools (Wales) Regulations 2006) in failing to allow for an appeal.

This decision was appealed by the Council citing that the need for fairness under Section 98(4) of the Employment Rights Act 1996 (Article 130 of the Employment Rights (NI) Order 1996) had not been properly considered by the Tribunal.   Their argument was principally based upon the Tribunal using guidelines as ‘inflexible legal rules’.  Furthermore, it was argued that there was a failure to consider the limitations that were placed upon the Council when it came to recruiting for the new school vis-à-vis the reorganisation.

The EAT held that there was no error in law by the Tribunal when it came to assessing fairness.  The EAT did acknowledge that there were aspects that read like there were being hard rules set down when it only applied to the guidelines.  However, in assessing the Tribunal’s decision as a whole it was clear that the requirement for fairness (which included the needs of the Council) were considered in coming to a decision. This was made clear by the EAT when they stated that the respondents had acknowledged that there was a right of appeal given within the Regulations.  This was not afforded to the claimants and therefore there was a procedural flaw which led to unfairness to the claimants.

Practical Lessons

The issue of redundancy and the procedure to be adopted is unfortunately likely to come to the fore considering the fall-out of the effects of coronavirus.  When employers are having to make employees redundant, there should be a structured approach that takes into account all of the legal rights of the staff.  In this case, the failure to give an appeal was noted from the very outset, yet there was nothing done to try and rectify the issue. This clearly shows how a respondent can dig a hole for themselves that becomes harder to get out of as time goes on.  This can be avoided by employers by ensuring that appeals are planned for and taken into account.
https://www.gov.uk/employment-appeal-tribunal-decisions/gwynedd-council-v-shelley-barratt-and-other-ukeat-0206-18-vp