Was an employment tribunal wrong to determine that a claim for unfair dismissal had no reasonable prospect of success simply because the employee had volunteered for redundancy? Yes, held the Employment Appeal Tribunal (EAT) in White v HC-One Oval Ltd.
Background
The claimant, Ms White, was employed from June 2013 as a part-time receptionist at a care home operator, HC-One Oval Ltd. In September 2018, it announced a reduction in reception and administrative staff, and provisionally selected Ms White for redundancy. She then submitted a request for voluntary redundancy, which was accepted.
However, following her termination of employment Ms White submitted a claim for unfair dismissal, alleging that the redundancy process was not genuine. She claimed she was targeted for dismissal because a grievance she had raised in July 2018 about covering duties of a colleague without any extra pay had not been resolved until after she had elected to volunteer for redundancy, and her points had not been accepted in any event. She also claimed that during the redundancy process she had not been offered an administrative role which had become available.
Additionally, a receptionist, who had no childcare responsibilities, and whose employment had only recently started, was offered a full-time position whereas the two part-time receptionists had been dismissed. Ms White claimed this had been the plan all along.
HC-One Oval Ltd. disputed Ms White's allegations. It asserted that she had been fairly dismissed for redundancy at her own request, and therefore her claim should be struck out because it had no reasonable prospect of success.
The employment tribunal held that, because Ms White had requested redundancy, HC One-Oval would be able to establish the reason for, and reasonableness of, her dismissal therefore it and struck out the claim.
Ms White appealed the decision.
Law
The Employment Rights Act 1996 describes a dismissal on the grounds of redundancy as being where the dismissal is due to (a) a business closure, (b) a workplace closure or (c) where there is a reduced requirement for employees to carry out work of a particular kind or to carry out work of a particular kind at the place where the employee was employed to work.
Where an employee volunteers for redundancy, they are volunteering to be dismissed by the employer by reason of redundancy, not agreeing to resign. It is therefore possible that such a dismissal may be unfair.
Decision
The EAT found that the tribunal was wrong to strike out a claim for unfair dismissal. It held that had Ms White's account of the background to her redundancy been accepted and considered by the tribunal it could not have found that there was no reasonable prospect of success.
Additional facts might have included matters other than simply her voluntary redundancy request. In addition, even if the tribunal was satisfied with the reason for dismissal, it would still need to consider the fairness of the redundancy process to determine if it was a sham, as claimed by Ms White.
The case has been referred to the tribunal for consideration by a different judge.
Comment
Christine Jamieson, Senior Paralegal in our Employment team commented:
“It is good practice to consider offering voluntary redundancies before beginning a consultation process, although there is no obligation to do so. However, it is important to be aware that even if someone volunteers for redundancy in response to an employer's invitation, this still counts as a dismissal by reason of redundancy, and they will be entitled to a statutory redundancy payment if they have over 2 years’ service.
“As highlighted in this case, an aggrieved employee will not be prevented from bringing an unfair dismissal claim even if they have volunteered for redundancy. Therefore, if there are any unresolved issues it would be wise to consider having the employee sign a Settlement Agreement to prevent any subsequent claims, particularly if an enhanced redundancy payment has been offered. Seeking legal advice in such circumstances is strongly recommended.”
