Are volunteers for redundancy dismissed?


Are volunteers for redundancy dismissed?

An employer is under an obligation to consult collectively where it proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days of less. The EAT was recently asked to consider whether employees who had volunteered for redundancy had been dismissed. If they had, they should have been included within the total number of redundancies for the purposes of working out whether the obligation to consult collectively had been triggered.

Optare Group Limited proposed to make 19 redundancies at its Leeds site and started an individual consultation process. Employees were asked whether they wished to volunteer for redundancy, with Optare reserving its discretion to decline to accept any volunteers. Three applications for voluntary redundancy were received and a further 17 employees were made compulsorily redundant. The TGWU argued that collective consultation should have been carried out given that the total number of redundancies was 20.

On the basis that the crucial question is "who really is responsible for the dismissals" the EAT decided that the three volunteers had been dismissed. The reason why their employment had been terminated was because of the redundancy process: they had not volunteered prior to the redundancy selection exercise occurring but had done so after volunteers were invited by Optare to mitigate the impact of the redundancies. Therefore, Optare had proposed to make 20 employees redundant and had failed to comply with its obligation to consult with the trade union representatives for at least 30 days.

The EAT acknowledged that there may be other redundancy situations where there are additional facts demonstrating that a volunteer was not dismissed (although it did not give any examples). This might be the case where it was known to the employer prior to the redundancy exercise that the employee wished to leave and then the employee subsequently volunteered for redundancy.

In practice

In the majority of cases volunteers should to be included in the total number of redundancies for statutory consultation purposes. The safest approach is, therefore, to include volunteers in the number of proposed dismissals. An employer who fails to comply with the collective consultation requirements may face claims from each of the affected employees for a protective award of up to 90 days' pay.

Optare Group Limited v Transport and General Workers Union UKEAT/0143/07