The recent case of White v HC-One Oval Ltd has emphasised that employers could still be liable in unfair dismissal claims, even where an employee had requested voluntary redundancy.
It goes without saying that employers have recently been under increased pressure when it comes to ensuring that they have followed correct procedure in employee management. With P&O Ferries being the most obvious example of what can happen when redundancies are arbitrarily (and seemingly unlawfully) imposed, some employers might be less concerned of any wrongdoing where an employee voluntarily requests redundancy.
The recent ruling by the Employment Appeal Tribunal in White v HC-One Oval Ltd, however, has highlighted that employers need to be extremely careful around the circumstances giving rise to an employee’s voluntary request for redundancy, in order to ensure they do not face valid claims for unfair dismissal.
Background
HC-One Oval Ltd provides professional residential nursing and specialist dementia care for older people. Ms White was employed by HC-One Oval Ltd as a part-time receptionist at a care home in East Sussex and her employment with them began in or around December 2017.
Towards the end of 2018, HC-One Oval Ltd announced its 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 Ms White worked, and Ms White was provisionally selected for redundancy.
Ms White considered that her role was not redundant, and that someone else was being employed by the business to replace her on a full-time basis. During the process, Ms White elected for voluntary redundancy and this was agreed by the company, leading to the termination of her employment on 8 October 2018.
Employment Tribunal
The Employment Tribunal held that Ms White had no reasonable prospect of success in her unfair dismissal claim, in circumstances in which she had voluntarily requested redundancy. The Employment Tribunal decided that Ms White’s claim should be struck out because her claim based on her dismissal would not succeed, as HC-One Oval Ltd would satisfactorily be able to establish the reason and reasonableness of the decision (i.e. her voluntary redundancy).
Part of Ms White’s claim was that HC-One Oval Ltd had broken the term of mutual trust and confidence prior to her volunteering for redundancy, entitling her to claim constructive dismissal. However, it was held that she did not resign because of that breach but had volunteered to be dismissed for redundancy. The Tribunal therefore concluded that Ms White’s claim, based on her other actions prior to her volunteering for redundancy, had no reasonable prospects of success.
Employment Appeal Tribunal
Ms White appealed against the decision reached by the Employment Tribunal, submitting that the Employment Tribunal had erred in law when it determined that her claim had no reasonable prospect of success.
Ms White contended that the Tribunal was wrong to conclude that because the dismissal in this case was a voluntary redundancy it was, by its nature, a fair dismissal. The Employment Tribunal’s reasoning appeared to assume that every voluntary redundancy would automatically be a fair dismissal and/or that by volunteering for redundancy, an employee would lose the right to claim unfair dismissal.
The Employment Appeal Tribunal held that those assumptions were incorrect as a matter of law. The Employment Appeal Tribunal therefore allowed the Claimant’s appeal and remitted the case to the ET where it should now proceed to a full merits hearing.
Key point to note
This case emphasises that now more than ever, employers are being subjected to a higher level of scrutiny when it comes to their actions leading to employee redundancies. Employers need to be able to show that they have acted properly and in accordance with their procedures, regardless of whether a redundancy is voluntary or not. Ultimately, whether an employee is made redundant as a matter of choice will not prevent them from bringing a valid claim for unfair dismissal.
For further information or to discuss the issues raised by this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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