Can a voluntary dismissal be unfair

Another week, another case. After a long week of stormy weather and associated British small talk we thought it would be best to cut to the chase, not bother with a tenuous link and get stuck into to a case about redundancy and TUPE. For those of you who already had your fill of TUPE last week, I assure you that this case has a different lesson.

Today’s question

Does consensual termination of employment amount to dismissal?

The Claimant, Mr Khan, was a marketing manager for HGS Global Ltd, the 1st Respondent. The 1st Respondent carried out marketing campaigns and the Claimant’s team was Marketing Dreams Ltd, the 2nd Respondent.

The 2nd Respondent then decided to move all its marketing in-house and all 1st Respondent staff currently working on the 2nd Respondent’s marketing would transfer under TUPE. During the consultation the Claimant raised concerns about the increased travel time transferring to the 2nd Respondent would cause him.

Staff concerned about travel time were given three options: Transfer to the 2nd Respondent, apply for a vacant position within the 1st Respondent, or, potential redundancy. The Claimant decided to opt for redundancy, something he confirmed with the Respondents. His employment terminated on the date of the proposed transfer between the 1st and 2nd Respondent.

The Claimant then bought an unfair dismissal claim before the ET. He believed he had no choice but to choose redundancy which meant he was dismissed. The ET rejected the claim stating that the Respondents had outlined alternative options instead of redundancy.

The Claimant appealed stating that it is possible to be voluntarily dismissed. The EAT accepted that it is possible to be voluntarily dismissed but this is only in cases where the Claimant is presented with no option but to volunteer. As the Claimant had three clear options he was not voluntarily dismissed and thus the appeal was rejected.

The take away point:

Yes, an employee can be voluntarily dismissed but this is only in circumstances where they have little choice in the matter. For example, redundancy or dismissal, or, resignation or dismissal. If a Claimant volunteers for redundancy in a scenario where there are options that do not result in employment terminating they have not been dismissed as they had free choice in the matter. A further option is to give settlement agreements instead as this protects the Employer from any claims.