REWARD
Redundancy, impairment, vicarious liability
NicoleMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Gwynedd Council v Shelley Barratt In this case, the employment appeal tribunal (EAT) upheld the employment tribunal’s (ET’s) conclusion that there had been a redundancy procedure that had not been properly managed by the respondent. The claimants were teachers employed to work at a school. The respondent, a local authority, implemented a reorganisation scheme which involved the school’s closure in order to open a new one in its place. All staff at the old school were informed that they would have their existing contracts terminated and would need to apply for roles in the new school. The claimants were later interviewed but were unsuccessful. They went on to bring an unfair dismissal claim against the local authority, arguing that they had not been provided the opportunity to consult representatives about the redundancy as per usual procedure. They also submitted that they should have been able to appeal against the dismissal. The respondent countered, saying that the claimants suffered no disadvantage by not being able to appeal against the decision because an appeal would have made no difference due to the old
school being permanently closed. Further, they argued, the claimants were made redundant and fully compensated through redundancy pay. The ET rejected the respondent’s argument that the dismissal was inevitable and concluded that the respondent had chosen to circumvent established redundancy procedures, providing no opportunity for meaningful or effective consultation. The ET went on to say that the failure to permit an appeal was substantially and procedurally unfair as this right was now so ingrained in employment law practices and included in relevant guidelines. Therefore, denying this fell outside the band of reasonable responses. The respondent appealed, arguing that the ET had erred in its approach to ‘fairness’ in a redundancy dismissal situation. They asserted that the ET had treated redundancy guidelines as inflexible legal requirements and that it had based its decision mostly on the claimants’ inability to appeal their redundancy. They also argued that the ET had failed to consider their limitations in relation to recruitment at the new school. The EAT dismissed this appeal. They found that it was open for the ET to consider
that the dismissal was a redundancy plan implemented due to the closure of the original school. The ET had been correct to find that the respondent, in its position as a local authority, was not bound to follow through with the dismissal purely on the basis that the new school had failed to hire the claimants. As a result of this, the EAT held that the ET had not based its decision purely on the absence of an ability to appeal the redundancy, rather the procedure had been flawed throughout. Redundancy procedures can be difficult for employers to approach, and it is unfortunately something that many may be considering over the next few months as a result of the coronavirus. It is essential to follow appropriate procedure, including consulting with staff, and ensuring that all decisions are taken carefully. Khorochilova v Euro Rep Limited The EAT has ruled that the ET did not err by finding a claimant had not demonstrated clear evidence that her ‘mixed personality’ disorder had a substantial adverse effect on her day-to- day activities. The claimant worked for a company which specialised in breeding insects. She was later dismissed from her role, with management informing her that this was due to issues that related to her management of a cricket colony. She later
...conclusion that there had been a redundancy procedure that had not been properly managed...
| Professional in Payroll, Pensions and Reward | October 2020 | Issue 64 36
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