Unilateral retraction of dismissal invalid

Posted: 1st November 2011

The employer in this case was contemplating future redundancies. Against that background the parties discussed the possibility of the employee continuing to work for the employer but on a self-employed basis. No terms were actually agreed.
The employer then gave written notice of termination of the employee’s employment and informed her that an alternative agreement, under which she would be self-employed, would commence upon termination.
Shortly after the termination, the employee informed the employer that she did not accept the alternative agreement. The employer responded stating that if she did not wish to become self-employed then the relationship would continue as before. The employee failed to return to work and the employer concluded that she had resigned.
The employee subsequently brought a claim for unfair dismissal. The Employment Tribunal dismissed her claim on the basis that she had not been dismissed but had resigned. It said that the reference to the termination of her employment had been a mistake and that the employer had withdrawn the dismissal once it had realised its mistake. The Employment Appeals Tribunal, and later the Court of Appeal, disagreed.
The Court of Appeal said that the employer had intended to dismiss the employee and had done so using clear and unambiguous terms. It went on to say that once an employer has given an employee notice of dismissal, or an employee has given notice of resignation, the notice can only be withdrawn if both parties consent to the withdrawal.
Where ‘special circumstances’ exist, the Court of Appeal said that the recipient of a notice should allow a reasonable time to elapse, normally a day or two, to satisfy itself that the giver of the notice did in fact really intend to give a notice of resignation or dismissal, as the case may be, before accepting or otherwise acting on it.
Resignations or dismissals made orally ‘in the heat of the moment’ and where the words said are withdrawn quickly may amount to ‘special circumstances’, as may resignations made by immature employees or where an employee has been jostled into a decision by their employer. The Court of Appeal was, however, satisfied that there were no ‘special circumstances’ in this case.