If someone volunteers for redundancy, can they still claim unfair dismissal?

The recent case of White v HC-One Oval Ltd held that they could, if there was reason to believe that redundancy may not be the real reason for their dismissal.

HC-One has over 300 care homes across the UK. Mrs White was a part-time Receptionist working 18 hours per week in one of their care homes.

Between December 2017 and October 2018, the Deputy Manager of Mrs White’s care home needed to take time off work due to ill health. When she was off, Mrs White worked additional hours to cover the Deputy Manager’s administrative duties. She received the same rate of pay for all Receptionist and Administrator work.

In June 2018, a new Receptionist was taken on in Mrs White’s care home, bringing the team up to three part-time Receptionists.

Towards the end of July 2018, Mrs White submitted a grievance in which she complained that she should be getting a higher rate of pay for doing the Deputy Manager’s administrative work.

Shortly after Mrs White put her grievance in, HC-One announced plans to restructure the Receptionist/ Administrator teams in a number of its care homes, including Mrs White’s care home.

Mrs White and the other two Receptionists in her team were put at risk of redundancy. The Deputy Manager was also put at risk of redundancy and accepted voluntary redundancy.

This left a pool of three part-time Receptionists, including the one who had only started in June 2018.

HC-One advised the pool that they were looking to cover 40 hours per week of combined Receptionist and Administrator work; hours that could potentially have been covered by Mrs White and her colleague without the need to recruit the new Receptionist just weeks earlier.

However, after the first consultation meeting, Mrs White became aware that the new Receptionist had been told that she did not need to attend the second consultation meeting; which may have indicated that HC-One had already decided to retain her.

Mrs White had still not had an outcome in connection with her grievance and felt that she was not being treated fairly in relation to the redundancy process. She volunteered for redundancy and this was accepted.

Her grievance was then concluded and her complaints relating to pay were not upheld; despite HC-One offering the combined Receptionist and Administrator work at a higher rate of pay within the redundancy consultation process which may have indicated an acceptance that the administrative work should be paid at a higher rate of pay.

Although Mrs White had volunteered for redundancy, she claimed unfair dismissal.

This could not be treated as a constructive dismissal because Mrs White had not resigned her employment, she had asked to be dismissed because she had volunteered for redundancy.

The Employment Tribunal struck her claim out on the basis that it did not have reasonable prospects of success.

However, the Employment Appeal Tribunal held that the circumstances surrounding Mrs White’s dismissal needed further examination and sent the claim back to the Employment Tribunal for a full hearing.