In the case of termination of employment by reason of redundancy, many employees feel aggrieved and want to appeal against the decision to select them as opposed to one of their colleagues. The question is often asked whether an employer is obliged to offer an appeal in redundancy dismissal situations.
There is no legal obligation to offer an appeal in these circumstances, although there may be an advantage in doing so. The ACAS Code of Practice suggests that employers have an appeal process, but this is confined to dismissals for disciplinary and performance reasons. The code in this regard does not apply to redundancy dismissals. There is a separate ACAS guide on redundancy which suggests that it is good practice to offer an appeal. However, unlike the codes of practice, the guide has no official legal status.
Employers should also look at their own policies and procedures, as well as any collective agreements which may have a bearing on redundancy appeals. If your own redundancy policy provides a right of appeal then you should offer one (assuming the employee has over 2 years’ service and qualifies for unfair dismissal rights). If you do not follow your own procedure, that is probably going to make the dismissal unfair. Subject to these points, there is no legal obligation to offer a right of appeal if the employer dismisses by reason of redundancy.
What do the courts say?
The courts have also commented on the situation. The Court of Appeal in Northern Ireland has ruled that in the absence of special facts, not requiring an appeal procedure before a dismissal for redundancy could be found fair. Most recently in June this year, the President of the Employment Appeal Tribunal approved this principle, so that no appeal is necessary.
The problem with appeals
There is a good argument against having an appeal process in redundancy dismissals. Unlike performance and conduct dismissals, other people are affected by redundancy dismissals. If a person dismissed then appeals, and their selection is reversed on appeal, this may leave somebody else who has been through the redundancy scoring process, being told that they are in fact going to be made redundant because the other person who originally scored lower has been allowed back on appeal.
Arguably, there should be finality in redundancy selection and an appeal process may undermine that. There is also the chance, of course, that allowing a right of appeal provides an opportunity for a second manager to mess things up!
The counter argument, however, is that allowing an appeal does have the advantage of fixing any procedural flaws. Overall, the downside of giving a right of appeal in terms of the extra work for the employer and the knock-on effect of bringing back one employee on other staff who may then have to be dismissed, outweighs the slight advantage of allowing an appeal.
Employers should be aware that a fair redundancy involves consultation, a fair selection and finally, examining whether there are any other alternatives.