In Stephenson College v Jackson an employer had identified a need to make redundancies.  It applied selection criteria to a pool of employees, and the claimant received the worst score of the employees in the pool.  He was selected for redundancy.  However, during the redundancy consultation process, another employee, who scored second worst under the selection criteria, applied for voluntary redundancy.  His application was not accepted and the claimant was dismissed by reason of redundancy.  The claimant alleged that his dismissal was unfair.

The EAT upheld the tribunal's finding that the dismissal was unfair.  The employer was unable to explain why the application for voluntary redundancy had been turned down.  There was little difference in the scores of the two employees, and according to the tribunal the reason for the disparity in the scores – the fact that the other employee had a formal qualification whereas the claimant did not – was not "in practical terms any particular advantage".  On that basis, and in light of the fact that the respondent's own redundancy policy said that it would try to avoid compulsory redundancies by seeking volunteers for redundancy, the dismissal was unfair.

There may be good reasons why an employer would want to refuse an application for compulsory redundancy from a particular employee.  The volunteer may have skills that the employer wants to retain in the business, or he may be regarded as a more satisfactory employee generally.  The problem for the employer in this case was that it was unable to identify what those reasons were.  The evidence of the manager that conducted the selection exercise was that he had "no idea" why the application for voluntary redundancy had been refused – he was not the one who had made that decision.  Refusing an application for voluntary redundancy will not automatically make a subsequent compulsory redundancy unfair – but a tribunal will expect the employer to be able to explain the rationale behind the decision.