18 May 2022
Law at Work - May 2022 – 4 of 5 Insights
Just because an employee has requested voluntary redundancy does not necessarily deny them a reasonable prospect of success in an unfair dismissal claim. In White v HC-One Oval Ltd the Employment Appeal Tribunal (EAT) held that an employment tribunal (ET) is still required to consider whether there was a fair reason for redundancy and whether the process was fair. It is more likely that despite the employee "volunteering" to be made redundant, in reality they are choosing to be dismissed for redundancy, rather than agreeing to resign, so statutory principles for a fair reason and process for redundancy apply.
Ms White (the claimant) was employed as a part time receptionist by her employer at a care home. Her employer announced plans to reduce the number of staff carrying out receptionist and administrative work in several of its care homes, including hers. The claimant was selected for redundancy. She then requested voluntary redundancy which the employer accepted. However, following the termination of her employment, she brought a claim for unfair dismissal. She alleged that she unfairly selected for redundancy because she had raised a grievance for not getting a pay increase when she covered additional duties from a colleague who off sick and a new full time receptionist was taken on shortly before the redundancy consultation started. She had not been offered this position and believed it was done with a view for a full-time employee to replace the two part-time receptionists (including herself).
The respondent disputed the allegations, stating that the claimant had been offered the administrator/ receptionist role on a job share basis but had declined that offer, stating that she wanted to be made redundant and it was only after the claimant rejected the role that it was offered to the new receptionist. This meant that the claimant had been fairly dismissed for redundancy and the claim should be struck out on the basis that it had no reasonable prospect of success. The ET agreed, deciding that as the claimant had requested redundancy the employer would be able to satisfactorily establish the reason and reasonableness of the decision. The claimant appealed to the EAT.
The EAT allowed the appeal deciding that the ET had erred in law, and that the case should be remitted back to the ET to be heard before a different judge. This was because there was a factual dispute between the parties as to background of the redundancy which meant that had the tribunal engaged with the case taken at its highest, it could not have found that there was no reasonable prospect of success. Had the claimant's account of the background to the redundancy been accepted, then the facts then known to the decision-taker might well be found to include matters other than the claimant’s request for redundancy i.e. the additional employee taken on potentially to replace the existing part-time receptionists. Even if the ET had been satisfied that there was a fair reason for redundancy, it would still need to consider whether the process was fair.
Voluntary redundancies can still result in claims for unfair dismissal because an individual is usually regarded as having been dismissed, rather than there being a consensual termination. Events leading up to the request for voluntary redundancy are relevant, both in terms of whether the process was fair, but also whether a dismissal is fair in all the circumstances; something the ET mistakenly did not consider in its decision to strike out the claim. To avoid situations like this arising, employers should follow a fair redundancy procedure, and, if offering enhanced rather than statutory redundancy packages, consider compromising potential claims by way of a statutory settlement agreement.
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by multiple authors