Question of the month: Do you need to offer an appeal in redundancy dismissal situations?

Although offering an appeal is recommended, there is no statutory right to one in redundancy situations.

The ACAS Code of Practice states that employers should provide an appeal process for individuals following a disciplinary and grievance procedure.  However, this requirement does not apply to redundancy dismissal decisions.  The ACAS Guide on redundancy states that it is good practice to offer an appeal to employees who are made redundant, but unlike the ACAS Codes of Practice, the ACAS Guide has no legal force.  Therefore, while employers need to be mindful of what their own policies and procedures say on the issue of redundancy (if anything) there is no legal obligation to offer an appeal to an employee who is made redundant.

Case law has confirmed that there is no obligation on an employer to provide an appeal in a redundancy scenario unless there are special circumstances, e.g. where a right is granted under contract, a local by-law or via an employer’s policy (where a failure to comply may render the redundancy dismissal unfair). 

One of the arguments for not granting a wide right to appeal against a redundancy decision is that, unlike in situations involving capacity and disciplinary issues, where reinstating the employee does not affect any others, if a decision to make someone redundant is overturned it is likely to have an impact on others.  The counter point is that allowing a limited appeal to procedural issues gives employers an opportunity to fix procedural flaws in the process.    

When considering fairness in redundancy procedures, the leading case of Polkey v A E Dayton Services Ltd [1987] provides that an employer will likely be acting unreasonably in dismissing an employee for redundancy unless it:

-          Warns and consults employees or their representatives about the proposed redundancy;

-          Adopts a fair basis on which to select for redundancy; and

-          Searches for and, if it exists, considers suitable alternative employment.  

Therefore if an employee is able, to challenge the above procedural aspects of the process then it presents an employer with the opportunity to correct the mistake and reduce the risks of a tribunal finding that a small procedural flaw makes the dismissal on the grounds of redundancy unfair.

Wrigleys' comment

Although we recommend that employers provide an appeal mechanism in redundancy scenarios, it is ultimately for individual employers to weigh up the pros and cons of this.  In addition, and particularly if redundancy procedures are envisioned, employers should inspect their policies and procedures and check what their position is before considering any changes.