The claimants were employed by teachers at a community secondary school (referred to in the judgment as School 1). There was a reorganisation of the local education provision and School 1 was closed and it was replaced with School 2 (at the same location).  A temporary governing structure for the new school was established to determine staffing structure.   This led to all employment contracts being terminated vis-à-vis School 1.  This led to those staff, the claimants, having to apply for jobs and go through an interview process.   The corollary being that unsuccessful candidates would be made redundant.

The claimants were unsuccessful and were made redundant.  The issue was that they claimed there were not given an opportunity to make representations against the redundancy decision nor were they able to appeal to the Governing Body of their employer (School 1).  It was found at first instance and by the EAT that the dismissals were unfair due to the failure to provide a right of appeal and the absence of consultation.  The Council appealed this to the Court of Appeal.  The Council argued that the use of ‘truly exceptional circumstances’ was too high a bar when it came to displacing the right of appeal.  Furthermore, they argued that a 100% Polkey Deduction should have been made by the Tribunal.

On the fairness of the dismissal, it was argued that neither the decision of the Governing Body to dismiss nor the decision not to offer positions in School 2 could be criticised.   There was an attempt to suggest the Governing Body was the de facto employer, but this was rejected.  The Council was the proper employer and had the duty to ensure a fair process was followed.

The Court of Appeal examined the nature of the right of appeal.  They held that the absence of an appeal does not of itself make a dismissal unfair for redundancy.  The absence, though, has to be considered in determining overall fairness. This can be contrasted with the Ni position where an appeal is statutorily outlined in the Employment (NI) Order 2003. In examining the decision of the Tribunal it was found that they looked at matters in the round rather than applying a general rule applicable to appeals only.   This is why the Tribunal had also examined the absence of consultation and the opportunity to make a grievance.  Accordingly, the procedure adopted was unfair.   The argument made around Polkey was rejected as it was made in the absence of evidence about the percentage chance the claimants had of retaining their roles had a proper procedure been adopted.

Practical Lessons

With the end of the furlough scheme, it is likely that the redundancy procedure will come to the fore within some employers.  This Court of Appeal decision demonstrates the importance of ensuring that the appropriate procedure is followed including consultation, employee engagement and appeals.  Whilst Northern Ireland may have a more robust system of procedure, the overarching position is that the proper procedure must be followed to ensure that the decision falls within the band of reasonable responses.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/1322.pdf

EAT Case Review:
https://www.legal-island.com/articles/uk/case-law/2020/june/gwynedd-council-v-barratt--others-2020/