Where employer believes (in error) that employee has resigned the ‘dismissal’ might be fair for SOSR

Adrian Fryer

The employment relationship can generally come to an end in one of two ways: resignation by the employee or dismissal by the employer. But what happens when wires get crossed? Where the employer genuinely believes that the employee has resigned and acts on that resignation – but they haven’t actually resigned. This point was addressed by the Employment Appeal Tribunal in the recent case of Korpysa v Impact Recruitment Services.

In this case, the Claimant was employed by the Respondent and placed with Howdens as a warehouse operative. During the COVID-19 pandemic, Howdens said that it no longer needed the Claimant. The Claimant rang the Respondent a week later. The Respondent alleged that the Claimant asked for her holiday pay and her P45 as she had a new job. The Respondent thought she had resigned. The Claimant alleged she had not asked for her P45 and had not resigned. The Respondent issued her P45. The Claimant claimed unfair dismissal and age discrimination.

The employment tribunal dismissed the Claimant’s age discrimination claim but found that she had been unfairly dismissed. In particular, the tribunal held that the Claimant had been dismissed because of the Respondent’s mistaken belief that she had resigned. The tribunal held that this could not be a fair reason to dismiss. It went on to hold that, even if it were, the dismissal could not be procedurally fair. The Respondent appealed. The Employment Appeal Tribunal, allowing the appeal, made the following points:

• An erroneous but genuine belief in a state of affairs (here, the Claimant’s resignation) which, had it in fact existed, would have been a fair reason for dismissal, and could be a potentially fair SOSR dismissal. The tribunal was wrong for failing to consider this.
• Once an employer has shown that the reason for dismissal is SOSR, then the fairness or not of the dismissal depends on whether in the circumstances, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The tribunal was wrong to automatically conclude that the employer could never have been found to have acted reasonably in this case.

The case was remitted to a fresh tribunal to consider whether the Respondent had shown that the factual reason for dismissal was SOSR, and, if so, whether it was fair or unfair.

It is obviously best practice to seek confirmation from an employee that they are genuinely resigning from employment before taking any definitive action to remove them from the employer’s systems. However, this case shows that where the ending of the employment relationship is messy and unclear, there remains the possibility of arguing that it ended for SOSR, and that the dismissal was fair. It will be interesting to see what decision is reached on fairness when this point is reconsidered by a fresh tribunal.

Contact our Employment Team.