Request for voluntary redundancy does not prevent consideration of fairness of dismissal and redundancy process (White v HC-One Oval)

An employee who requests voluntary redundancy does not necessarily have no reasonable prospects of success in a claim for unfair dismissal. The employee’s complaints about the process that led them to make the request are relevant to issues to be considered as part of a claim for unfair dismissal, including whether there was a potentially fair reason for dismissal (e.g. whether the dismissal was genuinely for redundancy or for another reason) and the fairness of the dismissal generally (e.g. whether the correct people were included in the pool for selection), according to the EAT.

What are the practical implications of this case?

This judgment is a helpful reminder that employers are not immune from a claim of unfair dismissal just because an employee accepts voluntary redundancy. This is because:

• although a voluntary redundancy may look like a consensual termination, an employee who volunteers for redundancy is routinely to be regarded as dismissed
• the events which precede the request for voluntary redundancy may be relevant to the decision maker’s reasons for dismissing the employee, and
• the process leading up to the request is also likely to be relevant to whether the dismissal was fair in all the circumstances.

The employment tribunal in this particular case made the error of assuming that an employee who made a request for voluntary redundancy was unable to complain about any of the events that preceded and led to that request as part of their unfair dismissal claim.

Employers should ensure proper redundancy consultation and selection processes are followed. Also, in most situations, especially where the voluntary redundancy package is being enhanced above the statutory minimum payments, it will be advisable to consider making the arrangement part of a settlement agreement which at the same time compromises any potential claims the employee may have against the employer.

Case details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Mrs Justice Eady DBE, President
• Date: 7 April 2022

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