Redundancy appeals

How should an employer deal with a redundancy appeal situation?

The redundancy process is full of legislative ‘tripwires’. For brevity we have not covered all the issues but miss one point and you could be facing an unfair discrimination claim. Following a fair process can minimise the risk of claims for unfair dismissal. This requirement extends to the handling of an appeal to the redundancy process.

When does an employee have the right to appeal?

Whilst there is no automatic right to appeal a redundancy decision, unless there is an appeal policy or process provided by the employer, this does not mean an employer can simply ignore an appeal when received. This is regardless of whether there is an appeal process or policy, which we know SME’s often don’t have.

A bit of case law on redundancy appeals

A recent Court of Appeal decision held that the lack of any appeal procedure does not itself automatically make a redundancy dismissal unfair. However, it is a factor in determining the overall fairness of the dismissal.

In this case, the employees were successful in their claim for unfair dismissal, because the overall process was unfair.

The lack of right to appeal and the lack of opportunity to raise a grievance against the process was considered substantially and procedurally unfair. The employment tribunal and court of appeal were especially concerned that there was a lack of appeal and no opportunity for the employees to raise a grievance against the process followed.

Whether or not an employer has an appeal or review process, if a redundancy appeal letter is received, it should be responded to following a fair process and within a reasonable time frame of about 5 business days. Following a fair procedure throughout the entire redundancy process is vital. Falling at the last hurdle for failing to respond to an appeal letter could be devastating.

Be prepared for appeals against redundancy

It is impossible to predict exactly the grounds an employee might appeal a redundancy, but that does not mean you cannot be prepared.

An employer will most likely find that an employee will appeal a redundancy on the grounds that they do not believe the redundancy is genuine, or that they believe it is unfair. For example, if there is reason to believe that an underlying reason or factor for the redundancy selection is discrimination. Part of minimising the risk of claim is to make sure a fair redundancy process is followed and that reasoning for the selection criteria are provided. Following a fair process continues to apply when responding to an appeal.

Common tripwires employers often get caught on when handling a redundancy situation is the approach they take in the selection process.

A “first in, first out” approach might seem fair on the face of it, but could quite quickly become an age discrimination case. In all cases, fairness is a matter of opinion that is bespoke to the employer. The easiest method to go by is to by performance reviews. In practice, performance reviews are not always up to scratch and fails to fairly assess employees.

You need a creative approach to consider ways to get around these issues, which we can help with.

Subject Access Requests in redundancy situations

A common tactic is for an employee to submit a Data Subject Access Request (DSAR) to the employer. This means an employer might be required to provide all information relating to an employee on company records, data bases and computer systems. DSAR’s use significant resources and are notoriously time resource consuming. They cannot be ignored and unless a DSAR is manifestly excessive, an employer must respond within one month.

A DSAR should be a red flag. It is an indication that the employee is looking to gain evidence to use in a claim against the employer.

Depending on the scope of a DSAR, an employer may be required to disclose for example emails between senior management where an employee’s name is mentioned.

Depending on what has been said, this could be revealing and potentially damning to the employer.

Some limitation exist in relation to what an employer is required to provide such as:

  • Documents that are subject to legal privilege
  • Disproportionate requests
  • Documents that contain information on third parties

Sorting through what you should and should not disclose is complicated. If you are not sure, please do give us a call and we can lead you though the process. Don’t be bullied.

Managing a DSAR

Not squeaky clean? A DSAR exercise might expose an instant message between bosses denigrating a particular employee. In this case, it is better to put forward a settlement agreement whereby the employee agrees to withdraw their DSAR and to waive certain rights to bring a claim against the company.

Even if a company is squeaky clean, it may not be a commercial exercise in responding to a DSAR. This can mean pulling multiple resources together and incurring significant costs. There is also a risk that you fail to comply in accordance with GDPR and face penalties from the ICO. In many cases, it is more commercial to offer a settlement agreement to avoid expending time and money on dealing with a DSAR.

Knowing where to pitch a settlement and balancing the potential risks of claims is an art. It is essential to get legal advice to make sure you are covered.

Provided you apply the redundancy procedure fairly and follow the correct steps, you can minimise the risk of claims for unfair dismissal. Please do call us with any questions. We find simple and commercial solutions.

Alex Kennedy

I know that when the noise dies down there is a solution to be found. I set about that task as quickly as possible.

Let us take it from here

Call us on 020 7438 1060 or complete the form and one of our team will be in touch.