Employment Law Cases
Voluntary redundancy and unfair dismissal
White v HC-One Oval Ltd
An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal.
From December 2017, Ms White worked for HC-One Oval as a part-time receptionist at a care home. Towards the end of 2018, her employer announced its proposal to reduce the number of employees carrying out receptionist and administrative work in several of its care homes, including the home where Ms White worked, and she was provisionally selected for redundancy. During the process, Ms White elected for voluntary redundancy and this was agreed by her employer, leading to the termination of her employment in October 2018.
She lodged a tribunal claim for unfair dismissal asserting that her dismissal was against a background of an outstanding grievance relating to an administrator position at the care home where she worked. She claimed that she had provided sickness cover for that role from December 2017, as well as carrying out her own duties, with no extra pay, and that she had raised a grievance about this in July 2018. She said that, although she had been told that her receptionist role was likely to be made redundant and that the administrator role would be considered on a job-share basis, she was only offered a receptionist role with additional duties but no increase in pay. A full-time administrator/receptionist role was offered to someone else, who had been recruited only shortly before the redundancy exercise had begun, at a higher rate of pay. She argued that this situation had been deliberately manufactured and suggested that the redundancy exercise was a sham, which led to her request for redundancy. Her employer claimed that it had offered her the administrator/receptionist role on a job-share basis but that she had declined the offer and requested redundancy. Hence, claimed her employer, she had been fairly dismissed and it applied for her claim to be struck out on the basis that it had no reasonable prospect of success.
A tribunal held that as Ms White had volunteered for redundancy, she could neither reasonably dispute the existence of a redundancy situation nor the employer’s decision to dismiss her for it. It struck out her claim on the grounds that it could have no reasonable prospects of success. Ms White appealed.
The appeal was allowed.
Ms White argued that the tribunal was wrong to conclude that because the dismissal in this case was a voluntary redundancy it was, by its nature, a fair dismissal. The tribunal’s reasoning appeared to assume that every voluntary redundancy would automatically be a fair dismissal and/or that by volunteering for redundancy, an employee would lose the right to claim unfair dismissal.
The EAT agreed. If her allegations were taken at their highest and treated as correct - which is what a tribunal must do when considering a strike-out application - there could be no question of Ms White’s claim having no reasonable prospects of success. The tribunal would have had to hear the evidence to know whether the redundancy was a sham or discriminatory or whether it was right, as the employer said, that Ms White had been offered that suitable vacancy but had turned it down.
The tribunal had failed to engage with Ms White’s case that the redundancy situation had been deliberately manufactured, focusing only on the decision to accept her request for redundancy and thus finding that the background matters about which she complained were irrelevant. The case was sent back to the tribunal to proceed to a full hearing on its merits.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2022/56.html
On one level, this is simply an example of a tribunal getting the law wrong. On another level, it serves as a reminder that employers need to be able to show that they have acted fairly and in accordance with their procedures, regardless of whether a redundancy is voluntary or not. If an employee is made redundant as a matter of choice this will not prevent them from bringing a valid claim for unfair dismissal. Remember - someone who volunteers for redundancy is not resigning, merely volunteering to be dismissed and there may be many reasons why.-