Resignation or dismissal?

24 Sep 2013

The issue in the appeal of Francis v Pertemps Recruitment, was whether the Claimant had been dismissed by his employer so as to establish a claim for unfair dismissal or whether the Claimant's employment had ended through mutual agreement.

Mr Francis’ employment as an admin assistant placed him in work with a particular client.  When the client no longer needed Mr Francis' services, he was verbally offered either two weeks' notice by Pertemps in which time they would look for alternative work for him (option A) or two weeks' notice plus redundancy pay (option B).  An email subsequently followed this conversation.  The words “notice” and “redundancy” in particular being used, having connotations of dismissal.  After changing his mind once, Mr Francis finally chose option B.

Mr Francis subsequently received a letter from Pertemps setting out the terms of the proposed redundancy.  This included the proposed redundancy payment and his notice entitlement.  The letter offered Mr Francis the right to appeal “the decision to terminate your employment”, a right which he exercised.  The conclusion of the appeal was to confirm the redundancy.  A claim for unfair dismissal followed.

The Tribunal upheld Pertemps' argument that Mr Francis had chosen to leave and there was therefore no dismissal for the purposes of unfair dismissal legislation.  However, the Employment Appeal Tribunal (EAT) disagreed.

The EAT concluded that Pertemps' actions, in particular the fact that the letter sent by HR said that Mr Francis was to treat the letter as a notice of redundancy and that he had been informed of his right to appeal were consistent with termination of the employment contract by Pertemps.  Therefore, there had been a dismissal and Mr Francis could proceed with his claim.

Our view:

A reminder therefore to take care when drafting termination letters.