Can voluntary redundancy also amount to unfair dismissal?

In light of a recent tribunal, Helen Burgess explores the law and pitfalls of unfair dismissal claims where an employee has voluntarily been made redundant

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When a claim is contested in an employment tribunal, generally it will proceed to a full hearing. However, the employment tribunal rules of procedure provide that if a claim has no reasonable prospects of success, it can be struck out at a preliminary stage in the proceedings.

It is important that this power is used only in the clearest of cases and not where there are material conflicts in respect of the facts surrounding the dismissal.

In Ms N White v HC-One Oval the issue was whether the claim had no reasonable prospects of success in circumstances where it was accepted that the employee had in the course of a redundancy exercise requested that the employer make them redundant. Did their volunteering in this way mean that a claim of unfair dismissal could be dismissed without going to a full hearing?

Ms White was employed on a part-time basis as a receptionist in a residential nursing and specialist dementia care centre. It was one of more than 300 care homes operated by the employer across the UK. 

In the latter part of 2018, a proposed restructure was announced under which the number of employees carrying out receptionist and administrative work would be reduced. 

In the months leading up to the announcement, White had, in addition to her reception duties, also been covering the admin duties that were the responsibility of the deputy manager who had been off sick. A new receptionist had also been taken on despite there being the same number of receptionists as there had been for the previous two years. 

The redundancy pool consisted of White and two other part-time receptionists as the deputy manager was still off sick and had accepted voluntary redundancy early in the process.

When White discovered the newest receptionist had not been invited to the second consultation meetings, she volunteered for redundancy on the basis it appeared to her that the process had been aimed to replace the existing receptionists with the new receptionist carrying out the roles of both receptionist and administrator. The employer disputed that this had been the aim.

The Employment Appeal Tribunal held that an employment judge had been wrong to strike out White’s claim for unfair dismissal as having no reasonable prospects of success in these circumstances. She was alleging that her employer had effectively recruited a new receptionist shortly before announcing a redundancy programme with a view to replacing her and the other existing receptionist. Whether a sham redundancy exercise had caused her request for redundancy was an issue that would need to be considered at a full hearing. 

It was wrong to conclude that just because her dismissal was a voluntary redundancy, it was, by its nature, a fair dismissal. It was directed that a full hearing of the merits of the case should take place before an employment tribunal.

Key points

It is well established that a voluntary redundancy may amount to a dismissal. This case highlights that just because an employee has volunteered does not mean that there are no grounds upon which a claim for unfair dismissal may be brought.

The background to the request for voluntary redundancy may be relevant to the fairness of the dismissal. The evidence may be that there was a genuine redundancy and a fair process followed but there would need to be findings made to determine the factual dispute between the parties. 

Given the differences in the facts put forward by the parties relating to the redundancy situation and the process followed, it was not possible to say that the complaint had no reasonable prospects of success.

Helen Burgess is an employment partner at Gateley Legal