Withdrawing Dismissals – case authority

25th August 2010
Withdrawing Dismissals – case authority image

Withdrawing Dismissals – case authority

There are many instances of employers purporting to dismiss employees and then looking to withdraw or retract the dismissal. A recent case of Willoughby (W) –v- CF Capital Plc (CFC) provided some further legal guidance on this subject.

W was told by her manager that CFC was experiencing difficulties, and that one way to avoid redundancies was for staff to become self-employed on a retainer plus commission basis.  W expressed an interest in this option and requested more information.  After repeated requests for paperwork, W eventually received on 23rd December an agency agreement to effect the move to self-employed status. The agreement stated that her existing employment would end on 31st December.

W took legal advice and informed CFC that she declined the agency agreement.  On 5th January W’s manager rang her to say that there had been a misunderstanding and that if she did not want to become self-employed that she could continue in her employment.

W maintained that she had been dismissed and claimed wrongful and unfair dismissal.  CFC denied that there was a dismissal and claimed that W had resigned.

The Employment Tribunal (ET) found that the letter from CFC ‘without more’ amounted to a dismissal.  However the ET found ‘special circumstances’, as W’s manager had genuinely believed that W had agreed to become self-employed, and the dismissal was withdrawn as soon as practicable after W had alerted them to the mistake.  The ET held that W had resigned, having refused the explanation of the situation and offers to continue to employ her.  W appealed.

The Employment Appeal Tribunal (EAT) allowed her appeal!  They said the ET had failed to ask whether ‘in the special circumstances’, W was entitled to assume that the decision to dismiss her was a conscious, rational decision.  In other words, was there anything to indicate to W that the words of dismissal were not to be taken at face value?

The EAT noted that the main practical problem addressed by ‘special circumstances’ had been words spoken in the heat of the moment and then quickly retracted.

On the basis of the ET’s findings that the reference to termination in the letter was intentional, not an error, W was entitled to assume that this was a conscious rational decision and to consider that her employment had ended.  Further the EAT held the Tribunal was wrong to hold that the withdrawal of the dismissal was timeous.  For a clearly expressed dismissal to be retracted it must be done quickly, usually within a day or two.  In this case the period was much longer and the Christmas holiday period was no excuse.

Daven Naghen, head of our Employment Team commented as follows:-

“This ruling may have been harsh on the employer, but shows that the employer must take great care in these matters.  An employer is only likely to be able to retract a dismissal if it was say made in the heat of the moment and the retraction is made almost instantly within no more than a couple of days at most.  If an employer notifies an employee in writing of a dismissal it will have great difficulties in retracting the dismissal as a written letter could suggest that the employer has made a conscious and rational decision to dismiss.

Subsequently a dismissal which cannot be retracted may lead to a claim by the employee for wrongful dismissal and or unfair dismissal.”

If you need advice on this subject matter then please email daven.naghen@maplessolicitors.com or telephone Dav on 01775 722261.

Maples supporting Macmillan Coffee Morning image

Maples supporting Macmillan Coffee Morning

On 29th September 2017 Maples Solicitors LLP will be hosting a coffee morning as part of Macmillan’s “World’s Biggest Coffee Morning”.

Tea, coffee and cakes will be served from 10:00am until 1:00pm and all donations received will go to Macmillan Cancer Support to assist them with providing medical, emotional, practical and financial support to those facing cancer and their families.

At the same time, Maples will also be running a free Wills, Lasting Powers of Attorney and Probate clinic so that whilst you are in the office you may take the opportunity to discuss any of these with one of the Private Client Team with no obligation to commit. You can use the time to raise any questions you may have about making a Will, who you could appoint as Executors, whether you need a Power of Attorney or how a Power of Attorney works, for example.

Maples hope to see their existing clients join them for the coffee morning and very much look forward to meeting new people- everyone is welcome!

If you would like to discuss any matters in relation to Wills, Lasting Powers of Attorney or any Probate related matters prior to the coffee morning then please contact one of the lawyers in our private client team:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office on 01775 722261 and ask to speak with one of the team.

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