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Do I need to offer my employee the right to appeal if I have made them redundant?

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When planning to make redundancies in your organisation it is important that you adopt a fair procedure, which may or may not include offering the employee the right of appeal.  Strictly speaking, there is no legal obligation to offer employees a right to appeal against your decision to make them redundant however there are many advantages of doing so and is therefore strongly recommended.  Our Employment Law team review those advantages here and also discuss some of the potential consequences of offering an appeal during the redundancy process.

Will not offering an appeal make the dismissal unfair in the Employment Tribunal?

When faced with an unfair dismissal claim, the Employment Tribunal must consider whether the decision to dismiss an employee was within the range of conduct that a reasonable employer could have adopted ("the band of reasonable responses test") taking into account section 98(4) of the Employment Rights Act 1996, which sets out the principles of fairness.  Legislation remains silent on whether or not an appeal should form part of the redundancy procedure, however this question has featured in many tribunal cases.

In the case of Robinson v Ulster Carpet Mills 1991, three employees were dismissed on grounds of redundancy and were not offered a right of appeal. The Court of Appeal in Northern Ireland determined that an appeal procedure was not required. As this case was heard in Northern Ireland, it is not binding on the Employment Tribunal in England and Wales; however, this case has been reinforced by a more recent case in the Employment Appeal Tribunal.

The case of Gwynedd Council v Shelly Barrett was decided by the UK Employment Appeal Tribunal in 2020 and confirmed that failing to give employees a right to appeal will not automatically make a redundancy unfair. However, the tribunal did consider the right to appeal as one factor when it assessed the overall fairness of the redundancy process.

Benefits of offering an appeal during redundancies

Offering your employees the right to appeal their redundancy may make the procedure more “fair”. ACAS recommends setting up an appeals procedure for employees who feel they have been unfairly selected for redundancy in order to decrease the likelihood of these employees filing a tribunal claim.  

If there are any concerns about procedural fairness and/or errors that may have occurred during the consultation and/or selection process, then offering the employee a right to appeal is all the more important.  The employee is provided with the opportunity of setting out their grounds of appeal and you are given the chance to rectify them, which may reduce the risk of a claim.   An appeal also gives you advance notice of what claims may be brought and the opportunity to assess the level of risk associated with such a claim.

Drawbacks of offering an appeal during the redundancy process

One disadvantage of offering an employee a right to appeal against the decision to make them redundant is that it prolongs what is an already stressful process.  It also has the potential to delay other business decisions that may need to be made and can be quite unsettling for your remaining workforce.  These disadvantages may be even greater if multiple employees appeal.

The benefits and drawbacks of an appeal process will vary depending on your organisation and the number of employees being made redundant. As an employer, you will need to weigh the advantages of an appeal procedure against any potential downside in your particular circumstances.

Implementing an appeal process when conducting redundancies

If you decide to offer employees the right to appeal the decision to make them redundant you will need to decide how an appeal process will form part of your redundancy procedure. 

  1. The first step should be that employees are required to submit their grounds of appeal in writing.
  2. They may then be invited to an appeal hearing; if possible, the appeal and the hearing should be conducted by someone who is more senior than the original decision maker and impartial to the procedure thus far.  It's important to note that you should have informed the affected employees of their right to appeal and the details of the procedure when you give them notice of your decision to terminate their employment on grounds of redundancy.
  3. After the appeal, employees should be notified in writing of your final decision.  If their appeal is successful, then they should be reinstated without any break in their continuous service, but if you uphold the original decision then the redundancy remains in force.

Carrying out redundancies in your business will be understandably stressful for all concerned and having the fair procedure will assist with helping employees feel more at ease that any decision made is a fair one and also help the business in reducing the risk of a tribunal claim.  If you are considering conducting redundancies and you are looking for advice as to a fair procedure, you can contact the Employment Law team today on 023 8071 7717 or email employment@warnergoodman.co.uk.  Alternatively, if you are seeking support in carrying out redundancy hearings or appeal meetings, Natasha Young, our External HR and Training Manager can assist as an external and independent source. 

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.