Lynam & Anor v Birmingham City Council UKEAT/0072/17/JOJ

Appeal against the dismissal of the Claimants' claims that the Respondent had breached their contracts of employment by failing to offer them the opportunity to apply for a voluntary redundancy package before dismissing them. Appeal allowed.

In December 2013 the Respondent announced on their intranet in a notice headed "Voluntary Redundancy (VR) Information and guidance for employees" that they had decided to undertake a process offering a generous VR package in 2014/15. The process was to cover "affected" employees identified as such in a section 188 notice, which included the Claimants. The notice stated that all eligible employees would be contacted and invited to make an application for VR. In September 2014 the Claimants were told that VR would not be available to them and they were made compulsorily redundant with effect from 30 April 2015. They claimed damages for breach of contract based on the Respondent's failure to allow them to apply for VR. The ET dismissed their claims on the basis that the Claimants had no contractual right to apply for VR because: (a) the Council had only offered an enhanced VR package in one previous year and it was unlikely to be repeated after 2014/15 so that there was no "policy" such as to give rise to a contractual right; (b) only employees invited to apply for VR would be eligible and have a contractual right to do so and, anyway, those who did apply had no right to receive VR; and (c) employees within a pool whose role was being deleted had no right to apply for VR. The Claimants appealed.

The EAT allowed the appeal. First, the Claimants were not relying on whether VR was a policy or custom and practice - what they were saying was that the Respondent had communicated that they, as the affected employees, could apply for VR and the fact that in the end they could not was a breach of contract. Secondly, even though there was no guarantee that employees who applied for VR would actually be offered it, the affected Claimants were all 'eligible' to apply. Thirdly, the Respondent had not communicated that there was any restriction on the right to apply for VR.

Published: 07/09/2017 10:25

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