Can an employee claim Unfair Dismissal if that employee has volunteered to leave?

The recent case of White v HC-One Oval Ltd [2022] EAT 56 involved Care home operator HC-One who announced it was reducing the number of employees in reception and administrative roles. Ms White was provisionally selected for redundancy. Subsequently, she requested voluntary redundancy, which was accepted. She then brought a claim of unfair dismissal (UD).

The question on everyone’s lips was, can she do this if she has actually volunteered for redundancy?

In bringing a claim for UD, Ms White argued that she had volunteered for redundancy because she believed her provisional selection for redundancy was artificially manufactured and she had previously raised a grievance regarding increased responsibilities without a pay rise, amongst other matters. She pointed to the fact that HC-One had, just before the redundancy process started, hired a full-time employee in a comparable role and it was this employee who had been retained. Ms White questioned whether there was a genuine redundancy situation. She further alleged that she had not been offered a suitable alternative vacancy and so questioned whether a fair process had been followed.

The Employment Tribunal initially struck out Ms White’s claim for UD on the grounds that it had no reasonable prospects of success as she had requested voluntary redundancy. So, on the face of it, the Tribunal decided that volunteering for redundancy meant you could not bring an UD claim. BUT…….

………Ms White appealed, and the Employment Appeal Tribunal (EAT) has recently allowed the appeal. They’ve allowed the appeal on the basis that the Tribunal should have looked at the reasons why she volunteered in the first place. The EAT has sent it back for the Tribunal to reconsider.

This case highlights that employers ought to be mindful that voluntary redundancy requests have the potential to still give rise to a claim for unfair dismissal and those can often come at a cost in terms of time and financial consequences.

To avoid this any employer offering voluntary redundancy should ensure:
1. That any request for voluntary redundancy is put in writing by the employee and the response should be formally recorded.

2. That any grievances or complaints during this process are covered by the employer and that it follows a fair and reasonable process.

3. Don’t ignore the requirement to consult, particularly if 20 or more employees at one workplace are at risk of being made redundant. Even where the decision seems obvious, individual consultation can strengthen the employer’s position should any future claim arise.

4. Consider entering into a Settlement Agreement with the employee if there is any cause of concern of a potential claim, which can reduce the risk of any potential claims.

If you have any concerns regarding the voluntary redundancy process, please email our Employment team who are happy to help.