Non
consensual termination

Cole v
London Borough of Hackney IDS Brief 674 EAT

Cole’s job
ceased to exist following a reorganisation. Her options were either to take up
a new position if a comparable job was available (which there was not) or to
apply for other vacant posts. She could also opt for a severance package.

Cole was
told she was not likely to be successful at interview for a vacant post but the
council omitted to inform her that she had priority rights in that regard.
Believing any application for a vacant position would be unsuccessful, Cole
asked to take voluntary redundancy and the council agreed.

Cole then
complained to the tribunal that she had been unfairly selected for redundancy
and unfairly dismissed. The tribunal held there was no dismissal but rather a
mutual termination of the contract. If however, there had been a dismissal,
Cole’s application for voluntary severance constituted a dismissal for “some
other substantial reason” and the council had not acted unfairly.

Cole
successfully appealed to the EAT which held that but for the council’s decision
to reorganise Cole would not have applied for the severance payment. There was
no consensual termination, rather this was a dismissal by reason of redundancy.

Ill-considered implications

Osborne v
Valve (Engineering Services), unreported, November 2000 EAT

Osborne commenced
tribunal proceedings for unfair dismissal, sex discrimination and breach of
contract but shortly afterwards realised the breach of contract claim was
likely to exceed the tribunal’s £25,000 jurisdictional limit. She applied to
withdraw that part of her claim in order to pursue the matter in the High
Court.

The
tribunal accepted her withdrawal and made an order dismissing the breach of
contract claim. Osborne subsequently learned that the order for dismissal
constituted an adjudication on the merits of the breach of contract claim and
by the principle of res judicata she would be prevented from bringing future
proceedings on the same matter. She sought a review of the decision but was
unsuccessful.

On appeal,
the EAT found that the chairman was aware of Osborne’s reason for withdrawing
the breach of contract claim, namely the transfer of the claim to another court
claim but failed to properly consider the implications when making the order
for “dismissal”. The appeal was allowed.