Can an employee who volunteers for redundancy bring an unfair dismissal claim?

Many people would assume that an employee who ends their employment by taking voluntary redundancy would not be able to bring a claim for unfair dismissal because it was their choice to leave. However, as a recent case demonstrates, there may be grounds upon which an employee who volunteers for redundancy can bring a claim.

The claim

In White v HC- One Oval Ltd, Ms White was employed on a part-time basis as a receptionist at a care home in East Sussex. Her employer announced their proposal to reduce the number of employees carrying out receptionist and administrative work in a number of its care homes, including the home in which she worked, and Ms White was provisionally selected for redundancy. In the process that followed Ms White requested voluntary redundancy, which was agreed, leading to the termination of her employment in October 2018.

After the termination of her employment, Ms White submitted a claim for unfair dismissal. She said that:

• She had been targeted for redundancy because of a grievance she had raised in July 2018 about having to take on administrative work that she was not paid for, to cover for a sick colleague.
• During the redundancy process, an administrative role had become available. This should have been offered to her.
• The process had been manufactured to achieve the dismissal of two part-time receptionists (Ms White was one of them) so that they could be replaced by a receptionist who was employed shortly before the redundancy consultation began. The new receptionist was kept on to do both reception and administrative work on a full-time basis. In Ms White’s view, this meant that it was not a genuine redundancy situation.

The employer’s case was that following the second consultation meeting in the redundancy exercise, they had in fact offered Ms White the administrator/receptionist role on a job share basis, but she had declined this offer, stating that she wanted to be made redundant. Therefore, they said Ms White had been fairly dismissed by reason of redundancy which had been at her request. In the circumstances, the employer argued that the claim should be struck out on the basis that it had no reasonable prospect of success.

The Employment Tribunal’s finding

The Employment Tribunal struck out the claim. It held that because Ms White had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal. Ms White then appealed to the Employment Appeal Tribunal.

Appeal

The Employment Appeal Tribunal found that had the Employment Tribunal engaged with Ms White’s case at its highest, as is required, it could not have found that there was no reasonable prospect of success. Ms White was arguing that the reason for her dismissal was in issue because although she had volunteered for redundancy, she did not accept there was a genuine redundancy situation. Additionally, even if the Employment Tribunal was ultimately satisfied that the actual reason for her dismissal was redundancy, it would still need to consider Ms White’s broader case on the fairness of the process that had led to her dismissal. The Employment Appeal Tribunal referred to previous case law which states that a claim should not be struck out where the central facts are in dispute. The case has now been sent back to the Employment Tribunal where it will go before a different Employment Judge for a final hearing.

Conclusion

This case demonstrates that there may be circumstances in which an employee who volunteers for redundancy can still bring a claim for unfair dismissal. This of course does not mean that Ms White’s claim will succeed, that will have to be decided on based on the evidence that is presented at the final hearing. What employers can learn from this case is that they should always be aware of the risk of an unfair dismissal claim arising out of a redundancy consultation, even when an employee takes voluntary redundancy. Therefore, being able to justify the reasons why redundancies are needed and carrying out a fair procedure are crucial. We would always recommend taking legal advice in advance of a redundancy consultation to help minimise the risk of claims being brought against you.