16 Apr 2021
The redundancy process is a long and intensive one. You have to ensure that the process is fair in all areas, from selection to making staff redundant.
If you fail to do so, you’re at risk of an unfair dismissal claim in an employment tribunal.
One area of confusion is appeals. Do employees have a right to appeal? Is there a process you have to follow? In this guide, we'll look at employee's rights to an appeal, the process to follow and what happens when offering an appeal process
Do you need to offer an appeal in redundancy situations?
There is no legal obligation to offer an appeal against dismissal in a redundancy situation.
The Acas code of conduct recommends that in cases of disciplinary and performance, an appeal process should be in place.
There is no official employment law status on the right to appeal redundancy decision. However, it’s good practice to do so.
Should you have a redundancy appeal process?
We believe that you should, as if you have followed a fair and thorough procedure, the outcome will be the same.
However, if you don’t offer those made redundant the right to appeal, you open your process up to scrutiny.
There is precedent for unfair dismissal because of a lack of appeals process. This was the case with Robinson v Ulster Carpet Mills. The tribunal saw that the redundancy was unfair because of a lack of appeals process.
This is a Northern Irish law case but the principle has been approved in several cases since then.
Offering an appeal also allows you to fix any procedural flaws that happened before the decision. An appeal process gives the employee a fair chance to raise any issues.
The downsides to appeals processes
There is one major flaw with appeals. If the appeal is successful, you are left with an awkward situation.
You likely will have gone through a scoring process and found that this candidate is the most suitable for redundancy. However, if they win the appeal you still need to make someone redundant.
This means you need to go back to the selection process and choose someone who scored higher than this person for redundancy.
Understandably, the employee will feel hard done by and will be more likely to appeal the decision as well.
Employee rights to appeal redundancy
An employee can appeal against being made redundant if they believe their selection was unfair or that you did not follow a fair redundancy process.
They may appeal for a variety of reasons, including allegations of discrimination, or allegations that the redundancy is unfair.
You should check your internal redundancy policies to ensure compliance. Your policy may outline an appeals process, and if you do not follow your process properly, it will probably be an unfair dismissal.
Who should handle appeals?
An independent person who did not take part in the original redundancy decision should handle redundancy appeals.
If this is not possible, then you should consider hiring an external HR consultant to undertake the appeal. Once the appeal has been decided, you will need to send a follow-up letter confirming the outcome of the employee’s appeal.
This outcome may involve reinstatement or may uphold the original decision.
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