Fentem v Outform EMEA Ltd: EAT 25 Feb 2022

Unfair Dismissal – For the purposes of the law of unfair dismissal, section 95(1)(a) Employment Rights Act 1996 provides that the concept of dismissal includes a case in which the contract of employment is terminated by the employer.
In the present case, by a letter of 16 April 2019, the employee resigned by giving nine months’ notice to take effect on 16 January 2020. On 19 December 2019 the employer invoked a clause in the contract enabling it, following the employee having resigned, to ‘terminate the [employee’s] employment forthwith’ by paying to him the salary, excluding bonuses, to which he would have been entitled in the remainder of the period of notice that had been given by him. As a result, the contract ended on 19 December 2019, instead of on 16 January 2020.
The employment tribunal considered itself bound by the majority decision of the EAT in Marshall (Cambridge) Limited v Hamblin [1994] ICR 962, to conclude that the invocation, following a resignation, of a clause permitting the employer to terminate the contract upon making a prescribed payment calculated by reference to the unexpired period of the employee’s notice does not, as a matter of law, amount to a dismissal. On appeal the employee accepted that Marshall v Hamblin stood for that proposition of law, and that if it must be followed, then the appeal must be dismissed. But it was argued that the EAT ought not to follow it, in particular, because it was manifestly wrong.
Held: The circumstances in which the EAT will depart from its own previous decisions are tightly circumscribed. One of them is where a previous decision is ‘manifestly wrong’, which means that it can be seen to be obviously wrong, without the need for extensive or complicated argument: British Gas Trading v Lock [2016] ICR 503 at [77] to [80]. Despite the reasoning in the decision itself being problematic, the proposition of law said to emerge from Marshall v Hamblin could not be said to be obviously wrong, without needing any detailed consideration or analysis of the arguments or potentially relevant authorities. That being so, it could not be said to be manifestly wrong, so as to enable the EAT to depart from it. The appeal must therefore be dismissed.

Citations:

[2022] EAT 36

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 April 2022; Ref: scu.674548