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Where an employer had made 20 employees redundant, three of whom had applied for voluntary redundancy, the latter, despite volunteering, had still been "dismissed" so as to trigger the statutory obligation to consult in the Trade Union and Labour Relations (Consolidation) Act 1992 s.188. A resignation or a consensual termination could amount to a dismissal.
O had advised the respondent union that it was proposing to announce approximately 30 redundancies across two of its sites. The minutes of that meeting had recorded that no more than 19 redundancies would be made. A truncated process of consultation had been undertaken in accordance with informal procedure agreements between O and the union, as a result of which O had asked for volunteers to be made redundant. Three employees were accepted for voluntary redundancy and a further 17 employees were told that they would be made compulsorily redundant. The union had therefore informed O that as 20 employees were being dismissed, rather than 19 as minuted, the statutory obligation to consult was triggered. O had responded that the three volunteers were excluded from the calculation so that the statutory obligation to consult did not apply. The employment tribunal had declared that the three volunteers were to be included within the number of employees dismissed by way of redundancy and had made an award protecting the remuneration of the redundant employees for 30 days.
O submitted that (1) the tribunal ought not to have had regard to a policy consideration, namely that if there was no "dismissal" of those volunteering for redundancy, future attempts to mitigate the impact of redundancy would be prejudiced because people wouldn't volunteer for fear of losing an entitlement to statutory redundancy pay; (2) as there had been no risk or pressure on the employees volunteering for redundancy, the tribunal had erred in law in concluding that they had been dismissed.
HELD: (1) Although it might have been better for the tribunal to have limited itself to statutory function, the policy statement had not been part of the tribunal's process of reasoning, but, rather, had been an expression of satisfaction that the view to which it had come was consonant with what it saw as the desirability of doing nothing which might deter others in future from volunteering to be made redundant. (2) A resignation or a consensual termination of employment could amount to a dismissal and in concluding that the volunteers had volunteered to be "dismissed", the tribunal had not erred in law. The tribunal had to address the question of causation and consider the context in which the resignations had occurred, the nature of the scheme of which the resignation was part, and the documentation which reflected what the parties believed they were doing, Burton Allton & Johnson Ltd v Peck  I.C.R. 193 and University of Liverpool v Humber and Birch  I.C.R. 470 applied. In the instant case, the three employees had not volunteered prior to the redundancy selection exercise, but had volunteered because they had been invited to do so. It was not necessary to investigate their individual motives for volunteering. The tribunal had correctly analysed the situation.
For the appellant: Helen Gower
For the respondent: Mark Sutton
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