We recently made 15 staff redundant – five of whom were voluntary. They are due to leave next week, but one has changed his mind. I don’t really want to go through the process again, so can we refuse to take him back?
It is good practice to invite volunteers for redundancy to lessen the impact of compulsory or forced redundancies. However, it is important to understand that when an employee volunteers for redundancy, they are volunteering to be dismissed by reason of redundancy – not by dint of resignation. This seems like an arbitrary distinction to make but, in reality, it doesn’t mean that the employee’s contract of employment irrevocably ends at the point at which they volunteer, but that they continue to be employed until dismissed.
The key issue in this case is the wording of any relevant policies, together with any formal request for volunteers, and whether the employee has been issued with a formal notice of dismissal. Most requests and policies give the employer the flexibility to refuse applications to ensure they retain key staff and keep control over the voluntary process. They may also allow staff to reconsider volunteering, and thus retract their applications by a set date. After that date the process is finalised and notices of termination issued to the relevant employees. Where formal notice of termination has been given to an employee, it cannot be withdrawn unilaterally, but only by agreement between the parties. There is no legal requirement to allow the employee to retract their application once they have been issued with formal notice of termination.
If the employee wishes to retract their application before being issued with formal notice of termination – or the date set within the policy or request – then it would be wise for the employer to consider why they wish to retract it, and then decide accordingly. The ability to refuse such a request will depend on the contractual status of any policy or request. However, any unreasonable refusal could lead to claims for unfair dismissal, discrimination or other claims.
To prevent unwanted complications arising, make sure any voluntary redundancy policy is clear, concise and unambiguous. Also consider setting out dates for applications and retractions.
Philip Pepper, associate, Weightmans
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