Does my employee have the right to a redundancy appeal?
In our June Advice on redundancies view here, we highlighted the need to follow a fair consultation process with your affected employee(s) and included the ACAS recommendation to offer the right of appeal against a redundancy decision.
In this month’s Advice, Odin HR considers whether the business argument for not offering redundancy appeals might sometimes outweigh the advantage of allowing them. Read on for more.:
Can my employee make a claim for unfair dismissal in the case of redundancy?
A redundancy termination is a dismissal and an employee with a minimum of two years’ service will be able to make a claim for ordinary unfair dismissal to an Employment Tribunal (“ET”). In fact, an employee with 103 weeks’ service (one week less than the two years) may generally make a claim, as they are entitled to the minimum statutory notice period of one week. This carries them over to the two years (providing they have not already been served notice expiring before the two years).
But don’t over-rely on length of service when considering the risk of an unfair dismissal claim. See Odin’s Warning below on “automatic unfair dismissal” claims, which remove the two years’ service requirement to claim unfair dismissal in most cases.
If an employee is dismissed for certain reasons, the dismissal will be automatically unfair, meaning that the employer will not be able to defend the claim. For most of the automatically unfair reasons for dismissal, employees do not require the usual minimum service to bring a claim to Employment Tribunal. A redundancy dismissal for any of the automatically unfair reasons will be unfair, regardless of the employee’s length of service.
See Odin HR’s other September Advice for more information on automatic unfair dismissal. View here.
When might a redundancy appeal process not be best for my business?
Potential ET claims aside, redundancy situations where others are affected may be a prime example:
- Where employees have been taken through a scoring process, scored more favourably than others and believed the process to be concluded and their jobs safe, but are now told they are to be made redundant because somebody who originally scored lower than them has been allowed back on appeal, this will be unwelcome and distressing.
- With regards to the employee reinstated on appeal, what will be the nature of their relationship with the manager who originally selected them for redundancy? Will the necessary trust and confidence between them be there and how motivated and productive will the employee be?
- An appeal creates extra work for the business at a time when it should be embedding the changes made and ensuring that its remaining employees are adjusting and delivering. It also creates a lack of finality, causing further unrest for the remaining employees.
So what are the risks to my business if I don’t allow redundancy appeals?
You might take some comfort from the fact that there is no legal obligation to offer the right of appeal in redundancy dismissal situations.
Also, in terms of case law (binding on other ETs), it has been the case for some years that an appeal procedure is not required before a dismissal for redundancy can be found to be fair.
What about ACAS guidance? You may remember from our previous Advice view here that whilst some ACAS Codes of Practice e.g. the disciplinary and performance Codes are not in themselves pieces of legislation, they do have official legal status at tribunal. However, the ACAS guide on managing staff redundancies does not have that legal standing.
So I never have to worry again about offering a redundancy appeal?
Not necessarily. (Sorry.)
There may sometimes be a case for allowing an appeal, for instance:
- If you have a redundancy policy, or if you have a collective agreement (trade union workplace agreement) in place that covers this, check first what they say about redundancy dismissals and appeals. If the right of appeal is in your procedure or agreement and you don’t respect it, you are in breach, which will not sit well with an ET and may well lead to a finding of unfair dismissal against you.
- An appeal hearing gives you the opportunity to consider whether there has been a flaw in the redundancy selection or process, however small, and to potentially recover the situation before it gets to ET. What is the employee claiming to be unfair and does it have any potential merit?
If the employee has been selected for redundancy for automatically unfair reasons or on the grounds of a protected characteristic (individual characteristics and circumstances protected from discrimination by legislation e.g. pregnancy), it may be wise to hear the appeal and seriously consider if the redundancy should be overturned and the employee re-instated.
- Allowing the employee to put forward their case and considering what they have raised, even if you decide not to overturn the redundancy dismissal in the end, may add the perception of credibility and fairness to your process if the matter goes to ET.
Odin HR’s recommendation
In his article on redundancy and appeals, Daniel Barnett, an employment law barrister, considers a possible “middle ground” for a redundancy appeal policy that enables an employer to take a discretionary approach to hearing redundancy appeals, where they “may, but do not promise to, consider the points put forward”. See https://www.danielbarnett.co.uk/ or contact us.
For businesses without an existing redundancy policy or collective agreement, this is a sensible approach that gives you a good degree of flexibility.
To ask for advice on redundancy situations or to request a quote for Odin HR to put together a redundancy policy for you, please contact us.
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