EAT UNFAIR DISMISSAL – Dismissal/ambiguous resignation
An employee was employed by an agency which placed him in work with a client whose identity was specified in the contract of employment. When that client no longer had need for the services of the Claimant, he was offered the choice of 2 weeks’ notice, plus redundancy pay, or 2 week’s notice, with the agency seeking out fresh work with a view to his entering into a new contract to do that work. He chose the former. The Tribunal thought the termination of the employment was consensual, such that no claim for unfair dismissal could be maintained. It was held that the question to be asked for the purposes of unfair dismissal proceedings was whether the contract of employment had been terminated by the employer, not the similar question arising if the question had been the right to a redundancy payment, which (expressed broadly) is whether the employment relationship had been brought to an end. The ET had construed the contract as providing that the Claimant was to work for a specific client. It was right to do so. The contract by which the agency provided that the Claimant would work for that client ended; no party argued it was frustrated; the agency could no longer perform it. In the circumstances it was terminated by the agency. The choices offered to the Claimant both involved his being given notice.
An argument that ‘notice’ and ‘redundancy’ were loose terms, not intended to have their formal meaning, and that when HR wrote to the Claimant to tell him he could appeal against his redundancy and he exercised the right to do so, this was meaningless (since he had already asked to be given notice and to be paid redundancy pay) was rejected as unrealistic.
The appeal was allowed and a finding that there had been dismissal was substituted.
Langstaff P J
 UKEAT 0003 – 13 – 2506
England and Wales
Updated: 19 November 2021; Ref: scu.514416