Selecting Staff for Redundancy? It Pays to Take Professional Advice First

The process of selecting staff for redundancy is fraught with legal pitfalls and seeking professional advice at the outset can in the long run save you from serious financial and reputational damage. In a case on point, a local authority reaped a whirlwind after mismanaging employment aspects of a school closure (Gwynedd Council v Barratt and Another).

The case concerned two teachers who worked at a school which was closed as part of wholesale reorganisation of education in the council's area. They were warned in advance that their employment would be terminated and that they would have to go through a full application and interview process if they wished to work at a new school which was to be opened on the same site.

They were dismissed on grounds of redundancy after unsuccessfully applying for positions at the new school but subsequently launched Employment Tribunal (ET) proceedings. In upholding their unfair dismissal claims, the ET noted that they had been denied any opportunity to appeal against their dismissal. The council argued without success that their redundancy was inevitable, given the closure of the old school, and that affording them appeals would have made no difference.

In rejecting the council's challenge to that outcome, the Employment Appeal Tribunal noted that the teachers had both a statutory and contractual right to appeal before they were made redundant. No attempt had been made to consult them about the way the redundancy exercise would be carried out. Decisions which had already been made were merely communicated to them.

Given that the vast majority of staff at the old school had been taken on by the new school, it was emphatically wrong to say that denying them a right of appeal had caused the teachers no disadvantage. Their dismissal was not inevitable and the process followed was fundamentally and profoundly unfair.

There was no evidence that the council could not have redeployed the teachers to one of the 100 or so other schools within its educational estate and its effective requirement that they apply for their own jobs fell outside the band of responses open to a reasonable employer. If not agreed, the amount of the teachers' compensation would be assessed at a further hearing.