EAT Unfair Dismissal: Dismissal/Ambiguous Resignation – The Employment Tribunal had found that there had been a consensual termination of the Claimant’s contract of employment and thus no dismissal for purposes of section 95(1)(a) Employment Rights Act 1996. The Claimant appealed.
Held:
Dismissing the appeal. The question for the ET had been: who had really ended the Claimant’s employment? (Martin v Glynwed Distribution Ltd [1983] ICR 511, at 519.) On appeal it was argued that, in finding that the Claimant had agreed to the termination of his employment and that the mechanism by which this was carried out was dismissal, the ET was bound to find this was a dismissal for the purpose of section 95(1)(a) ERA. Allowing that the question posed in Martin had to allow that volunteering to be dismissed still amounted to a dismissal for section 95(1)(a) purposes (Hellyer Bros Ltd v Atkinson and Dickinson [1992] IRLR 540), the ET was also required to have regard to the substance and not simply the form of the transaction (applying Birch and Humber v University of Liverpool [1985] IRLR 165). Doing so, the ET had been satisfied that the Claimant had voluntarily agreed that his contract of employment should be terminated at a time and in circumstances in which there would otherwise have been no dismissals. He was, thus, not volunteering to be dismissed by merely agreeing to the consensual termination of his employment on agreed severance terms and the case fell within the second category allowed by the EAT (Wilkie J presiding) in Optare Group Ltd v TGWU [2007] IRLR 931. This was a conclusion open to the ET on the evidence. It could not be said that it had thereby erred in law.
Eady QC HHJ
[2015] UKEAT 0176 – 15 – 1611
Bailii
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.560971
