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Voluntary redundancy
[ch 11: pages 370-371]An employer can ask for volunteers to avoid compulsory redundancies. There is no obligation to ask for volunteers and failing to do so will not make compulsory redundancies unfair (Rogers and others v Vosper Thornycroft [1989] IRLR 82).
Voluntary redundancy packages are often conditional on the employee signing a Settlement Agreement promising not to bring an employment tribunal claim (see Chapter 14, page 470).
There is no obligation to apply the selection procedure when deciding whether to accept employees for voluntary redundancy, and no obligation to accept those employees who put themselves forward. Terms for voluntary redundancy are usually better than those for compulsory redundancy, but there is no law that says they must be better.
As long as there is a genuine redundancy situation when the employer invites volunteers, voluntary redundancies will normally be treated as dismissals, in the same way as compulsory redundancies. However, the situation is not always clear and reps need to be alert to the risks, as the next case highlights:
Mr Khan worked at a call centre for a company called HGS in Chiswick providing services to a company called Dreams. Dreams decided to take the call centre services in house, and to base them at its High Wycombe premises. This was a TUPE transfer and during the pre-transfer consultation, employees like Khan who would have a commute of over 75 minutes under the new arrangements were offered a choice between relocation to High Wycombe, applying for jobs at HGS and a redundancy package. Khan opted for the redundancy package, but he later claimed unfair dismissal. The EAT refused to overturn the tribunal’s ruling that since Khan was offered a variety of choices, not just a redundancy package, this was a consensual termination, not a dismissal.
Khan v HGS Global and Or [2016] UKEAT/0176/15/DM
In another example, the case of Birch & another v University of Liverpool [1985] IRLR 165, the Court of Appeal ruled that employees who accepted early retirement when faced with a threat of compulsory redundancy ended their contracts by mutual consent. They were not dismissed for redundancy.
Voluntary redundancy policies must not discriminate unlawfully against particular groups such as part-time workers, young workers or disabled employees. Organisations that are subject to the Public Sector Equality Duty (see page 257) must also ensure they comply with that duty when devising and implementing redundancy programmes. Where employees volunteer for redundancies, reps should take care that they are not volunteering because they believe they will not get a fair chance at available jobs due to discrimination. In Derby Specialist Fabrication v Burton [2001] IRLR 69, the EAT held that an employee who had chosen to volunteer for redundancy for that reason could claim constructive discriminatory dismissal.