Unfair dismissal claim could proceed where voluntary redundancy requested

Tuesday 26th April 2022

In White v HC-One Oval Ltd the EAT held that the ET was wrong to strike out a claim for unfair dismissal where voluntary redundancy had been requested.

Ms. White was employed by HOO Ltd as a part-time receptionist at a care home.   HOO Ltd announced an intention to reduce the number of employees carrying out receptionist and administrative work. Ms. White was provisionally selected for redundancy, but then her request for voluntary redundancy was accepted and her employment terminated on 8 October 2018.

Subsequently, Ms. White brought a claim for unfair dismissal arguing that her selection for redundancy should be considered in the context of the outstanding grievance she raised in July 2018, which related to her having carried out both the role of administrator and receptionist without any additional pay. Ms. White alleged that the redundancy situation was manufactured, as a new full-time receptionist had been recruited shortly before the redundancy process began. It was the newly recruited individual who was offered a full-time administrator/receptionist role at a higher rate of pay, replacing two existing part-time receptionists, including Ms. White. Ms. White had only been offered a receptionist role with additional duties, but no extra pay. She requested voluntary redundancy as she thought the process was a sham.

HOO Ltd applied for her claim to be struck out on the basis that it had no reasonable prospect of success, arguing that Ms. White had declined the offer of the administrator/receptionist role on a job-share basis and requested voluntary redundancy and therefore was fairly dismissed.

The ET struck out Ms. White’s claim, finding that she could have resigned and claimed constructive dismissal, but instead she volunteered to be dismissed. The ET considered that any claim based on Ms. White’s actual dismissal would not need to address any of the issues she wished to raise, such as an alleged breach of trust and confidence prior to her request for redundancy.

The EAT overturned the decision, holding that the ET had not heard evidence or made findings from which it could determine the factual dispute. Claims should not be struck out where the central facts are in dispute. The ET had failed to consider Ms. White’s allegation that the redundancy situation had been manufactured. If this was the case, then it would be difficult to see how it could be said that there was no reasonable prospect of success. Furthermore, even if the reason for dismissal was redundancy, the ET would still need to consider Ms. White’s broader case when evaluating the fairness of the process. The case was remitted for a full hearing before a different EJ.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.