Insights on Relevance in Redundancy & SOSR Dismissals: Gwynedd Council & Moore v Phoenix, Lecture notes of Law

Download Insights on Relevance in Redundancy & SOSR Dismissals: Gwynedd Council & Moore v Phoenix and more Lecture notes Law in PDF only on Docsity! EMPLOYMENT LAW JOURNAL – NOVEMBER 2021 #225 DISMISSAL Dismissal: To appeal or not to appeal, that is the question A failure to offer or carry out an appeal is not fatal to the fairness of a redundancy or SOSR dismissal, but it will be a relevant consideration that tribunals take into account. In light of two recent cases, Christopher Fisher and Katherine Fox consider whether there are situations in which employers do not need to offer employees the opportunity to appeal against their dismissal Mayer Brown International LLP Christopher Fisher is a partner and Katherine Fox is a senior associate in the employment and benefits practice at Mayer Brown International LLP PDF accessed 29 October 2021 Dismissal: To appeal or not to appeal, that is the question In light of two recent cases, Christopher Fisher and Katherine Fox consider whether there are situations in which employers do not need to offer employees the opportunity to appeal against their dismissal A failure to offer or carry out an appeal is not fatal to the fairness of a redundancy or SOSR dismissal, but it will be a relevant consideration that tribunals take into account. Employers often ask whether they should offer an appeal against a redundancy dismissal or a dismissal for ‘some other substantial reason’ (SOSR). Unlike misconduct and performance dismissals, the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas code) does not apply to redundancy or, arguably, terminations for SOSR. Although the accompanying Acas guide recommends an appeal in redundancy cases, that guide does not have statutory force. The relevant statutory reference is at s98 of the Employment Rights Act 1996 (ERA). Under s98(1)(b) ERA, a dismissal will be fair if it is within one of the permitted categories under s98(2) (such as redundancy) or if it is for: … some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If the employer can demonstrate redundancy or SOSR, the fairness of the dismissal will then turn on s98(4) ERA, under which the question is: … whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. In this article, we take a look at two recent cases, one from the Court of Appeal and another from the Employment Appeal Tribunal (EAT), which considered the relevance of the offer of an appeal to the fairness of dismissals for redundancy and SOSR. PDF accessed 29 October 2021 Decision The tribunal found that the dismissal was fair because there had been a total breakdown in the working relationship, for which Mr Moore was to blame. Mr Moore appealed on various grounds, including on the basis that the failure to offer him an appeal was enough in itself to render his dismissal unfair. The EAT rejected this argument. It did note that an appeal will normally, but not invariably, be part of a fair procedure. Here, however, it had been open to the tribunal to find that, even if such an appeal had been offered or carried out, it would have been futile in the circumstances. The EAT’s reasons included that: Mr Moore was a board-level director and the company was a relatively small organisation with no higher level of management available for an appeal; it was not an option to find different managers for Mr Moore to work with more effectively; and ‘this was not the kind of organisation where the claimant’s shortcomings and the consequent threat to the respondent’s future could be addressed through some sort of re-training programme’. The EAT also found it relevant that Mr Moore was responsible for the breakdown in the relationship and was considered to be ‘destructive’, destabilising and a ‘drag-factor’ for the company. He was also unrepentant and had given no sign that he was likely to change his conduct or attitude. Key lessons These two cases offer a number of takeaway points for employers and in-house advisers: The overall conclusion is that a failure to offer or carry out an appeal is not fatal to the fairness of a redundancy or SOSR dismissal, but it will be a relevant consideration that tribunals take into account. It is important to be clear about the principal reason or reasons for termination. Lines can easily be blurred between conduct, capability and SOSR and which it is will influence the procedure to be followed. Based on the very different (and fairly extreme) facts of the two cases above, it is not difficult to see why two different outcomes were reached on the offer of an appeal. The safest route for employers will always be to offer a right of appeal against a termination for redundancy or SOSR. Appeals offer a chance to rectify any challenges from the employee that have not been addressed so far. There may be cases where an appeal is not practicable, or where a sufficiently thorough selection and consultation process has happened and an appeal is not needed for a fair dismissal. These cases are helpful in offering a defence, perhaps where: large numbers of employees are involved in a redundancy (or fire and rehire) exercise and both collective and individual consultation have taken place, so that there is nothing more to discuss with the employee; or PDF accessed 29 October 2021 the dismissal involves a senior executive and the organisation is small, with no one suitably senior to hold an appeal, or the board is agreed in its view that the relationship has broken down irretrievably. Cases Referenced Gwynedd Council v Barratt & anor [2021] EWCA Civ 1322 Moore v Phoenix Product Development Ltd [2021] UKEAT/0070/20/2005 Taskforce (Finishing and Handling) Ltd v Love [2005] UKEAT/0001/05/2005 Citation reference: Christopher Fisher and Katherine Fox, 'Dismissal: To appeal or not to appeal, that is the question', (November 2021 #225) Employment Law Journal, https://www.lawjournals.co.uk/2021/10/29/employment-law-journal/dismissal-to-appe al-or-not/, see footer for date accessed