The redundancy process should be fair at each stage to minimise the risk of tribunal claims. To what extent does this extend to a redundancy appeals procedure?
The following guide for employers examines the benefits of providing a right to a redundancy appeal and the procedure that should be followed as a matter of best practice.
Employee rights to appeal redundancy
There is no legal obligation on employers to offer employees the right to appeal redundancy. However, affected employees should always be given the opportunity to challenge any proposed selection pool or criteria during the individual consultation process. In addition, ACAS does recommend in its employer guidance that an appeals procedure is implemented for complaints relating to unfair application of selection criteria.
As with any dismissal, it is important for an employer to act fairly at all times. This means that when implementing a redundancy procedure, employers must ensure that they are able to justify any decision they take and the manner in which they have reached that decision.
When faced with a claim for unfair dismissal, an employment tribunal must consider whether the decision to dismiss was within the range of conduct that a reasonable employer could have adopted. This is known as the band of reasonable responses test, taking into account section 98(4) of the Employment Rights Act (ERA) 1996 which sets out the principles of fairness in any dismissal scenario, and whether the employer acted reasonably or unreasonably.
The ERA remains silent on whether or not an appeal should form part of the redundancy procedure, although this question was addressed in the case of Gwynedd Council v Shelly Barratt & Other (2020). Here, the EAT confirmed that there is no set rule that a redundancy dismissal will automatically be regarded as unfair on account of the absence of any appeal procedure. That said, the tribunal did consider the right to appeal a redundancy decision as one of the relevant factors when it assessed the overall fairness of the redundancy process under s.98(4) of the ERA.
On the facts of the case, the claimants had an express statutory and contractual right of appeal, the statutory right arising under specific regulations relating to the appointment and dismissal of teachers in a maintained school. It was therefore substantively and procedurally unfair to deny the claimants this right.
Still, the judgment in Barratt provides a clear warning for any employer embarking on a redundancy process, that a failure to consider an appeal, even absent an express right, may impact the reasonableness of their decision to dismiss.
As a matter of best practice, an employer should therefore not only undertake a fair consultation process and apply fair selection criteria, it should generally also provide employees with a right of appeal. An appeal could be on the grounds that either the employee was unfairly selected for redundancy or that the employer failed to follow a fair redundancy process.
Implementing a redundancy appeal process
Even though redundancy appeals can lengthen the time within which you can conclude this difficult process, not to mention the additional cost associated with allowing employees to appeal, there are several advantages to factoring in this additional procedural step — and one which could save you a significant amount of time and cost moving forward.
An appeal will offer the employee the opportunity to show that the employer’s reason(s) for dismissing them could not be treated as reasonable and, in turn, it will afford the employer another opportunity to look at the fairness of their decision. There could be a number of factors that may have been overlooked by the employer that, when put on notice of such matters, would mean they would potentially reach a different decision. This could be, for example, a failure to consider suitable alternative employment, or applying a selection criteria which has inadvertently and indirectly discriminated against a particular employee.
By offering employees the right to appeal their redundancy may not only make the overall procedure more “fair”, it can also help you to identify and rectify those cases where issues of procedural fairness have been overlooked or errors have been made. The ACAS guidance on handling large-scale redundancies recommends setting up an appeals procedure to give employees who feel they have been unfairly selected for redundancy an opportunity to argue their case. The chance to reconsider and correct any potentially unfair decision will therefore reduce the risk of any tribunal claims and the cost of defending these.
The appeal process will also give you advance notice of what tribunal claims may be brought, together with the opportunity to assess the level of risk associated with such claims.
Redundancy appeals procedure
Having selected an employee for redundancy, you must notify them of your decision to terminate their employment in writing. If you decide to offer the right to appeal, you should also inform the employee of this right and explain the procedure for appealing your decision to dismiss. Putting this procedure in writing can be key to ensuring that all employees are treated consistently and in demonstrating to a tribunal the fairness of your approach.
The following guide to redundancy appeals can be used as a basic template, although the manner in which you conduct any appeals will often depend on the size of your business, the number of redundancies being made and the resources available to you:
Any employee who feels they have been unfairly selected for redundancy, or there was a problem with the redundancy process, and wishes to challenge your decision should be invited to set out their reasons in writing. They should be given a reasonable timescale to appeal. In accordance with ACAS guidance, it is said that a period of 5 days from the date of receiving their redundancy notice could be considered reasonable.
Having submitted their grounds of appeal in writing, the employee should be invited to an appeal hearing as soon as possible. They should also be allowed to be accompanied by a work colleague or employee representative. The appeal hearing should be conducted by a senior member of staff not involved in the original decision-making process. If this is not possible, the person leading the appeal should be impartial. If resources allow, you may need to consider instructing an external independent HR consultant.
After the appeal hearing has taken place, giving the employee a full opportunity to set out their grounds, a decision should be reached without unreasonable delay to either refuse or uphold the appeal. You should put your final decision in writing to the employee.
If their appeal is upheld, but their employment has already come to an end, they should be reinstated without any break in their continuity of service. You may need to pay any arrears of salary between the end of the notice period and the time you reinstate them, although the employee should be made aware that in upholding their appeal they will be required to repay any redundancy payment. If their redundancy notice period has not yet ended, the contract of employment should continue as though the employee had not been selected for redundancy in the first place.
If the appeal is refused, then the redundancy remains in force. This means the dismissal, notice period and any entitlement to redundancy pay will continue as before.
If an employee is successful in any appeal, this will often mean another employee will need to be made redundant in their place. This could be a very tricky situation, especially if any affected employees were previously told they were safe from redundancy selection. You should therefore prepare for how to handle this situation sensitively, correcting any issues within the redundancy process and carrying out a fair selection. In some cases, you may need to start the entire redundancy process all over again to ensure you get this right.
Getting the appeal process wrong
If you provide a contractual right to a redundancy appeal procedure but you fail to honour this right, denying an employee the opportunity to challenge any decision to dismiss could be classed by a tribunal as substantively and procedurally unfair. Any attempt to circumvent a clear contractual right could result in a costly unfair dismissal claim.
It’s also important to ensure that where you do offer, and honour, any right to an appeals procedure, that this is followed fairly and consistently for all affected employees. This means that you cannot discriminate between who is allowed to appeal and who isn’t, or differ in the way that you conduct each appeal with different employees. Again, this could result in you defending a claim before the tribunal for procedural unfairness. If you fail to follow your own appeals procedure, that is probably going to make the dismissal unfair.
There is always the argument that given the opportunity to appeal, or had a fair appeals procedure been followed, this would have made no difference in any event and that the employee would still have been dismissed. However, if your redundancy procedures are regarded by a tribunal as fundamentally flawed, any award of damages can still be significant, regardless of the potential outcome had you acted fairly.
Best practice advice
By having a redundancy appeals procedure in place, this can help employees to feel more reassured that any decision to dismiss is fair or, at the very least, you will be open to listening to any concerns that they may raise as to whether the decision was fairly reached.
However, the mere existence of an appeals procedure is not, in itself, enough. This procedure must be complied with and applied consistently across the board. The procedure must also be followed in a way that is sympathetic and sensitive to the stress involved for any affected employees at such a difficult time. Any lack of understanding is highly likely to create hostility that can often result in a greater risk of litigation, regardless of the merits of any allegations of substantive or procedural unfairness.
If you’re contemplating making redundancies within your organisation and are looking for the best way to adopt a fair procedure, including the provision of a redundancy appeals process, you should seek expert advice from an employment law specialist. In this way, you can feel confident that the way in which you approach any redundancy situation will maximise the prospects of your final decision(s) being construed as fair, and minimise the risk of having to defend any claim(s) before an employment tribunal.
Your legal advisor can help you to navigate the complexities of the rules relating to redundancy, and show you how to use a redundancy appeals process to your advantage.
DavidsonMorris are experienced legal advisers to employers on all aspects of redundancy and employee dismissals. Our employment law specialists work closely with our HR adviser colleagues, providing a holistic service to employers managing employee redundancies, advising on procedural matters and employee entitlements to reduce the risk of legal complaints. We also have specific expertise on the use of settlement agreements during the redundancy process. For help and advice with a specific issue, speak to our experts.
Redundancy appeal FAQs
On what grounds can you appeal a redundancy?
If your employer offers you the right to appeal a redundancy decision, this will usually be on the grounds that either you were unfairly selected for redundancy or that the employer failed to follow a fair redundancy process.
Do employees have the right to appeal redundancy?
There is usually no automatic right to appeal a redundancy decision, although there may be an express contractual right set out under your contract of employment. There may also be a statutory appeals procedure in the context of certain professions.
What happens if I appeal redundancy?
If you appeal a redundancy you’ll usually be required to set out your grounds of appeal in writing and attend an appeal hearing. You should then be notified in writing of the employer’s decision to uphold or refuse your appeal.
Who should hear a redundancy appeal?
Ideally, a redundancy appeal should be heard by someone other than the original decision-maker or anyone directly involved with the redundancy process. If this isn't possible, the appeal should be led by someone who is impartial or independent.
Last updated: 26 April 2021