November 15, 2021

U.K. Employment Law Update: Impact of Lack of Appeal on Fairness of Redundancy Process, Dismissal for Assertion of a Statutory Right, and Dismissal of Whistleblower

Was a Redundancy Dismissal Unfair Because of Lack of Appeal?

In Gwynedd Council v (1) Barratt (2) Hughes [2021] EWCA Civ 1322, the Court of Appeal (CA) considered whether an employer’s failure to give an employee an opportunity to appeal against the decision to dismiss them for redundancy rendered the dismissal unfair.

The claimants were teachers who were dismissed for redundancy as a result of the closure of the school at which they taught. They brought a claim for unfair dismissal, arguing that the redundancy process had been unfair, in part because they were not given an opportunity to appeal their dismissal.

The CA confirmed that the absence of an appeal would not necessarily make a dismissal for redundancy unfair if the redundancy selection was conducted in accordance with a fair process. While it would be wrong to find a redundancy dismissal unfair only because of the absence of an appeal process, such absence was one of many factors to be considered in determining the overall fairness of a redundancy process. In this particular case, the lack of an appeal process was one of several factors which rendered the dismissal process unfair.

This case confirms that although failing to offer a right of appeal will not necessarily make a redundancy dismissal unfair, it is a factor that is material to the overall fairness of the process. As such, the safest course of action for employers is to offer employees an opportunity to appeal against any decision to dismiss them for redundancy.

Dismissal for Asserting a Statutory Right: When Did the Claim Crystallise?

In Simoes v De Sede UK Ltd UKEAT/0153/20/RN, the Employment Appeal Tribunal (EAT) considered when the right to bring a claim of automatic unfair dismissal for asserting a statutory right crystallises.

Miss Simoes was employed as a sales assistant by De Sede UK Ltd (De Sede), a manufacturer of luxury leather goods. She was asked by De Sede to work for 14 consecutive days without a break. Before the 14-day period started, she objected, stating that this would be a breach of her statutory right to rest periods. However, De Sede insisted and she started the 14-day period. When that period finished, De Sede dismissed her for having raised a complaint before the 14-day period started.

Miss Simoes brought a claim of automatic unfair dismissal, alleging she had been dismissed because of asserting a statutory right. De Sede argued that she could not bring such a claim because at the point at which she had raised her complaint no breach had yet taken place, so she was relying on a future breach of a statutory right, rather than an actual breach.

The EAT acknowledged that for an employee to be able to bring such a claim there must have been a breach of statutory rights. However, the EAT disagreed with De Sede’s argument that the breach in this case was a future breach; instead, it was De Sede’s instructions themselves that constituted a breach of statutory rights. As such, the EAT upheld Miss Simoes’ claim for automatic unfair dismissal.

This case provides a helpful reminder that merely issuing instructions which, if followed, would lead to a breach of statutory rights, can give rise to exposure for an employer.

Considering the Motivation Behind the Dismissal of a Whistleblower

In Kong v Gulf International Bank (UK) Ltd EA-2020-000357-JOJ, UKEAT/0054/21/JOJ, the Employment Appeal Tribunal (EAT) clarified when the motivation of a non-decision-maker can be attributed to the employer in the context of ascertaining the reason for the dismissal of a whistleblower.

Ms. Kong, the Head of Financial Audit for Gulf International Bank (Gulf), raised a number of concerns regarding an agreement. These concerns were found to amount to a protected disclosure for the purposes of whistleblowing legislation. Ms. Kong also made a number of critical remarks against Ms. Harding, the employee responsible for the agreement. Ms. Harding was very upset by the remarks and said she could no longer continue to work with Ms. Kong. Senior managers of Gulf subsequently took the decision to dismiss Ms. Kong, following which she brought a number of claims against Gulf, including for whistleblowing.

The EAT found that Ms. Kong had not been dismissed for whistleblowing. The managers who had taken the decision to dismiss her had been motivated by her attitude toward Ms. Harding, not by the protected disclosures she had made. The EAT confirmed that generally only the decision-maker’s motivation when dismissing a whistleblower will be attributable to the employer. Any exception to this principle would only arise in exceptional circumstances, such as where the decision-maker is deliberately misled by another employee about the material facts of the case — as happened in the case of Jhuti.

This case is a helpful reminder to employers to tread carefully when seeking to dismiss someone who has made a protected disclosure. In particular, they should ensure they follow a fair process and keep records of the reasons for the dismissal.

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