N WHITE v HC-ONE OVAL LTD

An employee who volunteers for redundancy may still have been dismissed and may bring an unfair-dismissal claim. A request for voluntary redundancy does not make the dismissal automatically fair, nor does it render complaints about the process leading to that request irrelevant.

Where the employee alleges that a redundancy process was manufactured or unfairly conducted, the employer must still establish the reason for dismissal and the tribunal must assess procedural fairness. A claim should not be struck out where central facts are genuinely disputed. The tribunal must consider all relevant material and take the claimant’s case at its highest before deciding that it has no reasonable prospect of success.

The claimant, a part-time receptionist, was provisionally selected in a redundancy exercise and requested voluntary redundancy. Her employment ended on 8 October 2018.

She alleged that the respondent had recruited a new receptionist shortly before the exercise in order to replace existing part-time staff, had failed to offer her the administrator role, and had conducted a sham or unfair redundancy process. The respondent maintained that it had offered her an administrator/receptionist job-share role, which she declined.

The London South Employment Tribunal struck out her unfair-dismissal complaint as having no reasonable prospect of success. It treated the prior matters as potentially relevant to constructive dismissal but irrelevant to dismissal following her voluntary redundancy request. The central issue on appeal was whether that approach was lawful.

1. Appeal allowed. The Employment Tribunal erred in striking out the unfair-dismissal claim. The claimant’s voluntary request for redundancy did not establish that her claim was fundamentally flawed or that the eventual dismissal was necessarily fair.
2. Under Employment Rights Act 1996, section 98, the employer bears the initial burden of proving the reason for dismissal and that it is potentially fair. The claimant’s request was relevant, but it was not necessarily the complete set of facts or beliefs operating on the decision-maker’s mind. On the claimant’s case, the request followed an allegedly manufactured situation in which a recently recruited employee was intended to replace the existing part-time receptionists.
3. The Employment Tribunal had heard no evidence and made no findings resolving the parties’ dispute about the history, including whether the claimant had been offered the administrator role. It wrongly treated that dispute as irrelevant because the claimant had not resigned and therefore had no constructive-dismissal claim. Even if redundancy were ultimately proved as the actual reason, the tribunal would still have to determine whether the wider process leading to dismissal was fair.
4. Rule 37(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 imposes a high threshold. The tribunal had to consider the documentation and take the claimant’s case at its highest. The central factual dispute was material and was unsuitable for summary determination. The claim therefore had a reasonable prospect of success.
5. The case was remitted for a full merits hearing before a different Employment Judge, given the view already expressed by the original judge.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2022] EAT 56 and remitted the unfair-dismissal claim for a full merits hearing before a different Employment Judge.
• London South Employment Tribunal: On 11 November 2020, with judgment sent to the parties on 19 November 2020, struck out the claimant’s unfair-dismissal claim as having no reasonable prospect of success.