Volunteering for redundancy does not prevent a claim for unfair dismissal

Your employer seemed to be manoeuvring you out of the business. Someone else had been brought in to do your job, but it was described as potential redundancy. Frustrated, you decided to ask to be made redundant. Your employer obliged.

Then you think – they didn’t follow the procedural requirements of a redundancy dismissal. Can I claim unfair dismissal?

It turns out you can. The Employment Appeal Tribunal (EAT) confirmed this recently in the case of White v HC-one [2022] EAT 56 on facts similar to those summarised above.

A bit more detail
There are five potentially fair reasons for dismissal, and redundancy is one of them. Very roughly, redundancy is defined as dismissal because of a reduced need for employees doing the type of work you do. For a redundancy dismissal to be fair, it must be a genuine redundancy (not a sham), and a fair redundancy process must be followed. Most importantly, the employer must consult with the affected employees and offer suitable alternative employment if available.

But how does redundancy apply in a case like this, where the employer did not actually decide to dismiss?

The employment tribunal said that as the reason for the termination of employment was that the employee volunteered for redundancy, the employer had acted reasonably. The tribunal also considered whether she might have a claim of constructive dismissal. However, that would require that the employee resigned, and according to the tribunal they did not resign, instead taking voluntary redundancy. That sounds like a Catch-22 situation – the employee couldn’t claim unfair redundancy dismissal, as she volunteered, and could not claim unfair constructive dismissal because she did not resign.

Accordingly, the employment tribunal considered that even taken at its strongest, the claim would not succeed, which meant it had no reasonable prospect of success. So, they struck the claim out before reaching a final hearing and considering the evidence.

The EAT disagreed with the employment tribunal. They said that the backgrounds could possibly have supported a claim of unfair dismissal. Had the employment tribunal held a final hearing and considered the claimant’s grievance and the suggestion that the redundancy process was a sham, the claim could have succeeded.

Concluding thoughts
This case should put extra pressure on employers to do things correctly. It also shows that employees need not lose hope – however, we would generally advise against waiting until your employment has terminated before trying to resolve matters.

Please note that currently, employees must have two years of continuous service to qualify for protection from unfair dismissal, unless the dismissal is discriminatory. Under the Employment Rights Bill, this two-year qualifying period will be removed. It is anticipated that this change will take effect no earlier than 2026.