No appeal – Is this automatically unfair dismissal in Gibraltar?
Is it automatically unfair dismissal in Gibraltar if an employer does not afford the right of appeal when dismissing an employee?
Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis.
No, not necessarily said the Court of Appeal in Gwynedd Council v Barratt and Hughes. [2021] EWCA Civ 1322. This authority, though an English court decision would be law in the Gibraltar Employment Tribunal.
Two teachers were dismissed by way of redundancy when their school [School 1] closed. The applicants were under the direction of the governing body of the school but employed by the local authority, Gwynedd Council. The school closed due to educational reorganisation in the area and all the staff’s employment was terminated on 31 August 2017. The staff however were all invited to apply for positions in a new school which was to open on the 1 September 2017 (School 2), and which was built at the same site.
Unless suitable positions were found elsewhere within the employer’s organisation, those who were unsuccessful in their application for a position in School 2 would be dismissed by way of redundancy.
A temporary governing body for School 2 was duly constituted and the two teachers underwent a selection and interview process for posts in the new school. Unfortunately, they were not successful and were dismissed by way of redundancy.
At the employment tribunal hearing, it was agreed between the parties that the teachers had not been given the opportunity to make representations or to appeal to the governing body of school 1 prior to their dismissal for redundancy.
[There were concerns raised by the employment tribunal as to whether this was actually a redundancy situation, but continued on the basis of the parties’ agreed facts].
The employment tribunal concluded that the teachers were unfairly dismissed because the employer Gwynedd Council had failed to ensure that the teachers were provided with a right of appeal and because the employer had failed to ensure that there was a consultation process and because of the way in which they had to apply for new positions.
On the employer’s failure to afford the respondent employees a right to appeal the employment tribunal noted that it required exceptional circumstances to refuse the right of appeal against their dismissal. It went on to find that this was not such a case. On appeal, the Employment Appeals Tribunal (EAT) agreed with the tribunal’s decision.
The employer further appealed to the Court of Appeal and where they submitted that the employment tribunal had erred in law,
- finding the dismissals were unfair
- by applying a test of “truly exceptional circumstances” in determining the fairness of the absence of a right to appeal
- by not making a Polkey reduction
The Court of Appeal dismissed the employer’s appeal finding
Fairness of the dismissals
The employer had argued that the decisions of the governing bodies of School 1 to dismiss the employees and School 2 not to re-employ were not open to criticism, and further, that they (the local authority) could not liable for the decisions of governing bodies who were independent of them. The Court of Appeal found on the facts however that the local authority was in this case the employer. As such the local authority were under an obligation to ensure that a fair redundancy process was observed.
Right to appeal
When a redundancy situation occurs the absence of an appeal per se does not make a dismissal unfair as long as the original selection for redundancy was in accordance with a fair procedure, and therefore the absence of an appeal is not fatal to an employer’s defence. The absence of an appeal however is only one of the many factors to be determined when considering fairness.
In this case, the Court of Appeal found that the employment tribunals approach could not be faulted as it had not simply applied the general rule that the dismissal in the absence of an appeal would be automatically unfair, rather it considered whether the employer’s approach fell within the band of reasonable responses (See Iceland Foods v Jones).
Furthermore, the employment tribunal had not only been concerned with the absence of an appeal process but also the absence of grievance and consultation on the dismissals. In addition, the Court of Appeal found that on the evidence the employment tribunal was entitled to find that the local authority employer had chosen to ignore the normal practice and methods when dealing with redundancies, that is, to consult with affected employees, and to keep redundancies to a minimum by redeployment in other schools in the area.
Polkey deduction
Because there was no evidence put before the employment tribunal by the employer, the Court of Appeal found that the employment tribunal was entitled to find that it was impossible to determine the hypothetical question as to what percentage chance either of the two employees would have had of being dismissed had a correct procedure been followed.
Summary
In the above case and on the facts, the Court of Appeal upheld the employment tribunals findings that the dismissals were unfair as the lack of a right to appeal was combined with other factors such as the right to be consulted when redundancy was raised, and as such the employment tribunal was entitled to find that the local authority’s actions fell outside the band of reasonable responses. This decision while an English judgment would be good law in the Gibraltar Employment Tribunal.
Of course, most employers, if not all, will as best practice, and to ensure fairness is maximised and with a view to reducing their exposure to a claim for unfair dismissal in the Gibraltar employment tribunal always provide an appeal process when an employee is dismissed. Despite the Court of Appeal re-enforcing that an absence of a right to appeal does not automatically make a dismissal unfair, clarifying that it is just one of the factors which an employment tribunal should take into account when considering fairness overall.
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
Are you an employer who requires advice on reducing your business’s exposure to an unfair dismissal claim?
Or are you an employee who is facing a disciplinary meeting or who has been dismissed?
Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, for advice to employers on reducing your businesses’ exposure to an unfair dismissal claim – Or, if you are an employee to evaluate your prospects for a claim for unfair dismissal?
All employee cases are considered on a “no win no fee” basis.
Telephone me at (+350) 200 73900, or email me at chris.brunt@phillips.gi
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
