Tribunal was wrong to strike out unfair dismissal claim where claimant requested redundancy 


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The Employment Appeal Tribunal (EAT) has held that an employment tribunal was wrong to determine that a claim for unfair dismissal had no reasonable prospect of success because the employee had volunteered for redundancy in White v HC-One Oval Ltd.

The claimant worked for a care home operator and carried out reception and administrative work. The care home operator announced in September 2018 that it was reducing the number of employees carrying out this sort of work, and the claimant was provisionally selected for redundancy. She subsequently requested voluntary redundancy which was accepted. She then submitted an unfair dismissal claim arguing that the redundancy process was not genuine and that she had been targeted for dismissal. She alleged that she had raised a grievance in July 2018 about having to cover the duties of an absent colleague in addition to her own without extra pay. She also alleged that during the redundancy process an administrative role had become available which should have been offered to her but wasn't, and that the redundancy process had been manufactured to enable a receptionist, who had been recruited just before the process began, and who had no childcare responsibilities, to be offered a full-time role while the two part-time receptionists had been dismissed.

The employer argued that the claimant 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 obliged, striking out the claim on the basis that as the claimant had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal. On appeal the EAT remitted the case to the tribunal for consideration by a different judge. It held that if the claimant's account of the background to the redundancy was accepted then the facts known to the decision maker might be found to include matters other than her redundancy request. It went onto hold that, even if the tribunal was satisfied with the reason for the dismissal it would still need to consider the fairness of the process given that the claimant had alleged that the redundancy process was a sham.

Take note: It is essential for an employer, once it has established that a genuine redundancy situation exists, to follow a fair procedure when implementing redundancies. A request to take voluntary redundancy which is accepted by the employer will only be valid if the definition of a redundancy is satisfied. 

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