Redundancy appeals

How to deal with a redundancy appeal situation

The redundancy process process presents several potential risks for employers. Following a fair procedure can reduce the risk of unfair dismissal claims, and this includes handling any appeal against the redundancy decision fairly.

Does an employee have the right to appeal?

Whilst there is no automatic right to appeal a redundancy decision, it is good practice to include an appeal procedure in employment contracts and policies. Refusing an appeal may contribute to a finding of procedural unfairness. The size and resources of the employer are also relevant when assessing fairness.

Be prepared for appeals against redundancy

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

An employee may appeal on the grounds that the redundancy is not genuine or that the selection process was unfair. They may also allege discrimination in the selection process, potentially exposing the employer to claims before the Employment Tribunal.

Reducing the risk of a claim starts with following a fair redundancy procedure and recording the reasons for the selection criteria. The same care is required when considering and responding to an appeal.

A practical approach can help employers address these issues, which is where we can assist.

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, databases and computer systems. DSARs can be time-consuming and resource-intensive. They cannot be ignored and, unless an exemption or extension applies, an employer must respond within one month.

A DSAR may indicate that an employee is gathering evidence for a potential claim against the employer.

Depending on its scope, a DSAR may require the employer to disclose personal data contained in emails between senior management that mention the employee. Depending on the content, this may reveal information relevant to a potential claim.

There are limits to the information an employer must disclose, including:

• Documents that are subject to legal privilege
• Manifestly excessive or otherwise restricted requests
• Personal data relating to third parties

Assessing what must be disclosed can be complicated. If you are unsure how to respond, we can guide you through the process.

Offering a settlement agreement to an employee appealing redundancy

In some cases, it may be commercial to offer an employee a settlement agreement to resolve the dispute and avoid the time and cost of dealing with an appeal or potential claim. The agreement may include the employee withdrawing their appeal and waiving specified claims, subject to the statutory requirements for a valid settlement agreement.

Assessing an appropriate settlement requires balancing the potential risks and costs of a claim against the proposed terms. Legal advice can help you evaluate the options and negotiate suitable terms.

A bit of case law on redundancy appeals

A Court of Appeal decision held that the absence of an appeal procedure does not, by itself, automatically make a redundancy dismissal unfair. It remains a relevant factor when assessing the fairness of the process as a whole.

In that case, the employees succeeded in their unfair dismissal claims because the overall redundancy process was unfair. The absence of an appeal and the lack of an opportunity to challenge the procedure contributed to the assessment of fairness.

If an employee submits a redundancy appeal, the employer should consider it fairly and respond within a reasonable timeframe. A target of around five business days may be appropriate in some circumstances, although the suitable timeframe will depend on the case. Following a fair procedure throughout the redundancy process is vital. Failing to deal with an appeal properly can undermine an otherwise fair process.

Following a fair redundancy procedure, including a proper consideration of any appeal, can help minimise the risk of unfair dismissal claims. Please contact us to discuss your options and find a practical, commercial solution.