“Voluntary” termination

Q. One of our members has agreed to the termination of his contract as an alternative to being dismissed, but he believes this to be unfair. He was not told of all the charges made against him and was told he could not have a union rep with him. Can he still claim unfair dismissal even though he agreed to go?

A. If your member agreed to his contract’s termination only as an alternative to being dismissed, it is possible that this would still be treated as a dismissal. The Court of Appeal addressed this issue in the case of Sandhu v Jan de Rijk Transport [2007] EWC Civ 430 (see Labour Research, June 2007, page 19). Essentially, if an employee doesn’t really have a choice about whether s/he goes and is simply trying to negotiate the best terms on which to leave, s/he could still have a claim of unfair dismissal (as long as s/he has the qualifying year’s service).

Your member will also be entitled to bring a claim under section 11 of the Employment Relations Act 1999 for his employer’s failure to let him be accompanied by his union rep at his disciplinary hearing.