Unfair dismissal: A dismissal may be unfair even if the employee has volunteered for redundancy

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Unfair dismissal: A dismissal may be unfair even if the employee has volunteered for redundancy

Published 9 May 2022

The EAT has held that a tribunal was wrong to strike out a claim for unfair dismissal on the basis that it had no reasonable prospect of success because the claimant had requested redundancy.

THE FACTS

Ms White was employed by HC-One Oval Ltd as a part time receptionist at a care home. HC-One announced that it was going to reduce the number of employees carrying out administrative and reception work, and Ms White was provisionally accepted for redundancy. At her request, she was made voluntarily redundant.

Ms White subsequently claimed in the employment tribunal that she had been unfairly dismissed. She argued that the redundancy process had not been genuine and that she had been targeted for dismissal. In arguing this, Ms White asserted that her dismissal had been made against the backdrop of a grievance that she had raised, and that the redundancy process had been manufactured so that a recently recruited receptionist, who had no childcare responsibilities, could be offered a full time role while the two receptionists who worked part time were dismissed. She alleged that, during the redundancy process, an administrative role had become available, that she should have been offered this role, and had not been.

HC-One argued that Ms White had been fairly dismissed for redundancy at her own request, and that the claim should be struck out because it had no reasonable prospect of success.

The employment tribunal agreed with HC-One, and struck out the claim on the basis that HC-One would be able to establish the reason for the dismissal and the reasonableness of the dismissal because Ms White had requested that she be made redundant.

Ms White appealed to the EAT, which upheld her appeal, finding that the employment tribunal had erred in law in striking out her claim. Ms White’s case was that the redundancy situation was a sham, and that the process that HC-One had followed was unfair and this was what had led her to request redundancy. The tribunal had, the EAT held, focussed only on Ms White’s decision to accept redundancy, therefore finding that the background matters about which Ms White had complained were irrelevant. The tribunal had not had proper regard to the documentation before it, and had failed to take Ms White’s case at its highest (as is required in strike out cases).

The case has been remitted to a new tribunal.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Voluntary redundancies can potentially result in successful unfair dismissal claims. . This case is a reminder to employers that voluntary redundancies are not always “safe”. Employers should consider whether it would be best to make enhanced voluntary redundancy payments subject to settlement agreements, particularly where the background to the redundancy may be contentious.  

Ms N White v HC-One Oval Ltd

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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