Business Law: Lloyd Clarke highlights the need for employers to follow their policies on redundancy

Lloyd Clarke of Attwells.

Lloyd Clarke of Attwells. - Credit: Archant

Is it unfair if an employer ignores an employee who had volunteered for redundancy and makes another person compulsory redundant instead?

As part of a fair redundancy procedure, once you start your consultation process and before any employees are compulsorily selected, you should always enquire if there are any volunteers. Although this isn’t a legal requirement, it can provide a way of avoiding, or at least reducing, the need for compulsory redundancies.

Let’s suppose that a volunteer for redundancy steps forward but they have skills you wish to retain. So, instead of accepting their application, you make another member of staff compulsorily redundant. Would the fact that you overlooked a volunteer give the redundant employee the right to claim unfair dismissal? This was the argument in the case of Stephenson College v Jackson 2013. The college had identified a need to make redundancies. When it applied its redundancy selection criteria to a pool of employees, Mr Jackson was selected for redundancy. However, a Mr Cooper had applied for voluntary redundancy. The college rejected this application and made Mr Jackson redundant instead. He then alleged that his dismissal was unfair because there was already a volunteer.

The tribunal agreed that his dismissal was unfair and the college appealed to the Employment Appeal Tribunal (EAT). It upheld the tribunal’s finding but this wasn’t because employers are obliged to automatically accept redundancy volunteers – something the EAT was keen to point out.

The college lost because it made a number of simple errors along the way. Firstly, its own redundancy policy stated that it “would try to avoid compulsory redundancies by seeking volunteers for redundancy wherever possible”. Secondly, having received such an application, it was unable to explain precisely why the volunteer’s request had been turned down. Finally, there was hardly any difference between the two employee’s scores, and therefore, no good reason why the college ought to have selected Mr Jackson for redundancy in place of the employee who had volunteered.

Refusing a voluntary redundancy application won’t automatically render a subsequent compulsory redundancy unfair. That said, you must have solid reasons for the decision, for example, that the volunteer had skills and experience you couldn’t afford to lose.

: : Lloyd Clarke is an employment solicitor with Attwells.

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