In the recent case of White v HC-One Oval Ltd (2022), the Employment Appeal Tribunal (EAT) held that where an employee requests voluntary redundancy, it does not mean that they cannot successfully claim unfair dismissal.
White v HC-One Oval Ltd (2022)
As a receptionist at the respondent's care home, the claimant, Ms N White, often stepped in to provide additional administrative support when staffing levels were low. However, she submitted a grievance in July 2018 after she didn't receive additional pay for this extra work, on top of her salary for her regular duties as a receptionist. Nevertheless, after the respondent recruited an additional receptionist in June 2018, the respondent decided to reduce the number of receptionists they had by one via redundancy in September 2018. The Claimant then left by reason of voluntary redundancy, without the grievance process being completed.
Nevertheless, subsequent to her voluntary redundancy, the Claimant then commenced Employment Tribunal proceedings for unfair dismissal. She claimed that the redundancy was a sham, arguing that the new receptionist had been recruited shortly beforehand to enable the respondent to facilitate the Claimant's redundancy, as retaliation for having lodged the grievance. Another motivating factor according to the claimant, was the fact that the claimant worked part-time, arguing that the respondent had brought in a full time employee (i.e. the new receptionist) to replace the Claimant and another part-time employee who worked as an administrator
The respondent applied for the claimant's claim to be struck out on the basis that it had no reasonable prospects of success, on account of the fact that the claimant had applied for voluntary redundancy, an offer that the respondent had accepted.
The respondent's application was successful and the Employment Tribunal struck the claim out, holding the claim to be "fundamentally flawed." The Tribunal stated: "The claimant volunteered to be dismissed by reason of redundancy. A claim based on that dismissal would not succeed as the employer would satisfactorily establish the reason and reasonableness of the decision. The claimant wished to complain about the actions of her employer which broke the term of mutual trust and confidence prior to her volunteering for redundancy. She could have claimed constructive dismissal if she resigned in consequence of the breach. However, she did not resign but volunteered to be dismissed"
Appeal
The Claimant appealed to the EAT, and the EAT upheld the appeal on the basis that the Tribunal had erred in law.
President of the EAT, Mrs Justice Eady, stated: "As the case-law makes clear, a claim should not be struck out where the central facts are in dispute. In the present case, the ET assumed that the factual dispute between the parties could not be relevant to the issues to be determined on the claimant’s complaint of unfair dismissal but that demonstrated a failure to engage with the way the claimant was putting her case. The fact that the claimant had requested voluntary redundancy did not mean that her complaints about the process that had led her to make that request were irrelevant; a claim of unfair dismissal in these circumstances cannot be assumed to be “fundamentally flawed”."
Mrs Justice Eady added: "All the more so, given the claimant was alleging that the employer deliberately manufactured the position, such as to suggest that the redundancy process at that particular workplace was a sham. The ET was required to engage with the case before it and to have regard to all the documentation, taking the claimant’s case at its highest. Although the ET had reminded itself of these requirements, it then failed to adopt this approach in its consideration of the claimant’s claim. That was an error of law that rendered the ET’s conclusion unsafe."
"More than that, however," Mrs Justice Eady continued, "it is clear to me that had the ET adopted the correct approach, it could not have concluded that the claimant’s case had no reasonable prospect of success. This was a case where there was a clear dispute on the facts that was not capable of summary determination."
Voluntary Redundancy Does Not Equate To A Resignation
The EAT ruling is a salutary reminder that a voluntary redundancy does not amount to a resignation. Whilst the employee is volunteering to be dismissed through voluntary redundancy, there may be many reasons as to why, and that reason could amount to the basis for a claim for unfair dismissal. Hence, even though the employee may be voluntanteering to be dismissed, the employer is still required to go through a fair and proper consultative process in which the employee is made fully aware of the facts, and the options available to them
