In a redundancy dismissal, is offering an appeal a necessity?

Sometimes it is, but on other occasions it isn't and here’s why.

With the Furlough scheme ending yesterday many employers will be considering what to do with employees who are due back to the workplace after a prolonged period of furlough. Some simply won’t have any work available and will be left with no option other than to make redundancies. Many would have seen this situation coming a while ago and are well down the road to redundancy, if not there already.

Redundancy is one of the potentially fair reasons for dismissal (section 98(2)(c) Employment Rights Act 1996) and case law has established that these must be a genuine consultation with those affected before any dismissal takes effect.

When dismissing for misconduct and capability employers should follow the ACAS Code of Practice of Disciplinary and Grievance Procedures and good industrial practice states that employers should stick to the Code. In fact, failure to follow the Code can mean that any tribunal award against an employer may be uplifted by as much as 25% in favour of the dismissed employee, so the onus is on an employer to follow a fair procedure inline with the Code.

But, the Code DOES NOT APPLY to redundancy dismissals.

That being said, ACAS does advise that an appeal be afforded the redundant employee, but it is not a statutory right. However, a vast body of case law has built up over the years and there are accepted principles which should be followed. Consultation throughout the process is vital. Determining the correct pool of employees which should be included in the process, agreeing with employees or their representatives the criteria to be used in the selection process and exploring alternatives are a must in virtually every case.

At the end of the process those employees are given notification of their dismissals if suitable alternative employment is not available. By this time the employer would have met with them, probably on a number of occasions, as part of the consultation process.

It is at this point the employer has the option to offer an appeal against the redundancy dismissal. They have a choice and this is often when I am asked to advise what they should do next.

There are occasions when I’m wary about offering appeals - it can open a very big can of worms! I agree that in many instances it may be a prudent step but not in all, and here’s why.

Think about what the result of the appeal could be?

There are two outcomes. Either the decision to dismiss is upheld - that’s fine - or it’s reversed. It’s the latter that troubles me. If the decision is reversed then someone else has to go instead.

Let’s assume the appeal manager agrees that the scoring on a particular criteria was wrong and subsequently increases the appellants (employee A) score which moves them out of the ‘at risk’ category, but it has the knock on effect of bumping another employee (employee B), who has just scraped through, to drop into the redundancy zone.

So now the employer has the unenviable task of calling in employee B and saying, ‘Sorry, we messed up, you are in fact going to be made redundant not employee A’. I can imagine what comes next. Employee B is none too happy and decides to appeal. And so it goes on - and what happens if he succeeds, do we go for employee C?

Even if it ends there, there is a high probability employee B will march off to the tribunal claiming unfair redundancy selection and one can could probably have sympathy with that.

So what’s the alternative?

If the redundancy consultation process has been handled correctly and the employer is confident that it will bear up to external scrutiny, then I would simply advise adding a line in the redundancy termination letter:

‘If there is anything you are not sure about, whether it be the process we have followed, or the criteria we have used in selecting you for redundancy, please let me know in writing within five days and I shall investigate and respond forthwith.’

Or words to that effect. At the end of the day, by that time, employees will have had the opportunity to challenge the reasonableness of the scoring criteria and their scores as part of the ongoing redundancy process.

I believe this should do the trick, because it gives the employee the opportunity to set out why they believe their selection was unfair and does not commit the employer to holding a full appeal against the dismissal. The employer can weigh up the employee’s objections and decide on the next move, either confirmation of the redundancy with reasons or, if they are valid reasons which deserve further attention, they can still revert to an appeal.

But - and there’s always a ‘but….’

There are occasions when an appeal is warranted. Far too often I am approached by employers who have dismissed employees without following the correct process or any process at all.

‘I just had to let them go’ - is probably the most common answer I get when I ask what selection process they followed.

A dismissal without consultation of any kind will, in 99% of cases, be considered unfair. So in these circumstances, or where the redundancy process is obviously defective, an appeal can rescue an otherwise fatal situation.

It’s a judgment call, but if an employer is in any doubt it is better to be safe than sorry and offer the appeal.