Strike out of unfair dismissal claim by employee who volunteered for redundancy is overturned

  • Posted

In White v HC-One Oval Ltd [2022] the EAT found that an Employment Tribunal was wrong to strike out an unfair dismissal claim by an employee who had volunteered for redundancy

Ms White worked as a part-time receptionist for care home operator HC-One Oval Ltd. Her employment started in June 2013.

In September 2018, HC announced that it was reducing the number of employees carrying out receptionist and administrative work in a number of its care homes, including Ms White’s place of work. Ms White was provisionally selected for redundancy.

Ms White requested voluntary redundancy, which was agreed by HC, and her employment accordingly terminated in October 2018.

Following the termination of Ms White’s employment, she submitted a claim for unfair dismissal. Her allegations included that:

  • She had raised a grievance in July 2018 about having to cover the administrative duties of the deputy manager who was off sick, as well as her receptionist role, without extra pay. She said her grievance had been closed on 19 October.
  • During the redundancy process, an administrative role had become available, but was not offered to her.
  • The redundancy process was a sham. It had been engineered to dismiss the two part-time receptionists, while offering a full-time administrator/receptionist role to an individual who had been recruited just before the redundancy process began, and who had no childcare responsibilities.

HC applied to have Ms White’s claim struck out as having no reasonable prospects of success, since she had requested voluntary redundancy.

The Employment Tribunal, which considered HC’s application, held that Ms White’s claim, “based on actings prior to her act of volunteering” for redundancy “had no reasonable prospects of success” and concluded that it was “fundamentally flawed and should be struck out”.

Ms White appealed, and the claim went to the EAT.

The EAT considered that:

  • Although Ms White volunteered for redundancy, she had previously clarified that “this was against the background of an outstanding grievance relating to the position of deputy manager/administrator at the care home where she worked”.
  • Ms White’s allegations were disputed by HC, but the Employment Tribunal heard no evidence and made no findings as to the history that would have enabled it to determine the dispute.
  • The Employment Tribunal therefore failed to engage with Ms White’s case. If Ms White’s account of the history had been accepted, “it would be difficult to see why [Ms White’s] … complaint of unfair dismissal would be viewed as having no reasonable prospect of success”.

Case law clarifies that a claim should not be struck out when the central facts are in dispute. Here, the EAT held that this was “a case where there was a clear dispute on the facts that was not capable of summary determination”. The EAT therefore allowed the appeal, and remitted the case to the Employment Tribunal for a full merits hearing.

This case demonstrates that volunteering for redundancy does not necessarily prevent an employee from succeeding in a subsequent claim for unfair dismissal.