Request for Redundancy: Can you have your cake and eat it?

The case of White v HC-One Oval Ltd is unusual on the facts in that the claimant claimed she had been unfairly dismissed despite actually having requested to be made redundant.  The Employment Tribunal (ET) had, some may say logically, struck out her unfair dismissal claim on the basis it had no reasonable prospect of success given that she had in fact put in a request for redundancy and had not been dismissed.

The claimant successfully appealed to the Employment Appeal Tribunal (EAT). The claimant’s case was that the respondent had manufactured a position in which another employee had been recruited to replace her and another, being part-time employees.  The claimant argued that the redundancy process followed by the respondent was unfair and precipitated her request to be made redundant as she knew she would be dismissed.

The EAT held that the ET had failed to engage with the claimant’s case and focused solely on the respondent’s decision to accept her request for redundancy, overlooking the background that had led to the claimant’s claim.  The EAT found that the ET had not considered the claimant’s supporting documents and had failed to take her case at its highest, which is required when an ET is considering if a claim should be struck out.  The EAT concluded that it had been impossible for the ET to determine that the claimant’s case had no reasonable prospect of success. 

There was a dispute between the parties regarding the chronology leading to the claim. The respondent argued that the claimant had been offered an alternative role but had refused to engage with the proposal and instead insisted she be made redundant.  In order to fairly determine the claimant’s unfair dismissal claim, the ET should have engaged with the claimant’s wider case on the redundancy process which led to her dismissal.  The key consideration here is that a claim should not be struck out when central facts are in dispute. 

The takeaway points from this case are:

1. You can claim unfair dismissal even if you have put in a request for redundancy;
2. The ET does not always get it right.

This blog was written by Elizabeth McGlone, Legal Director at didlaw.