Continuing this week’s theme of looking at words of dismissal …..

The EAT case of Willoughby v CF Capital Plc looked at the issue of when unambiguous words of disissal can be retracted.

Miss Willoughby was employed by CF Capital as a sales account manager.  During the banking crisis CFC looked to moving employees to self employed status.  She had a meeting with her manager about this.  Believing (mistakenly!) that she had agreed to the switch her manager sent her a letter stating ‘her existing employment contract was being terminated with effect from 31 December…..’ Miss Willoughby took this to mean she was being dismissed.  Her manager offered to rectify the situation and restore the relationship to that of employer/employee.  She refused and brought an unfair dismissal claim.

The Tribunal found that the letter on its own did indicate dismissal but it had not had that effect because of ‘special circumstances’.  Miss Willoughby appealed and has won.

The EAT referred to the case of Buckland v Bournemouth University Higher Education Corporation [2010] and pointed out that an employee can choose whether they wish to treat employment as at an end where the employer has committed a repudiatory breach of contract.  Words of dismissal can terminate a contract and also be a repudiatory breach of contract.

Case law on ‘special circumstances’ demonstrates that there are only limited exceptions (such as ‘heat of the moment dismissals’) to the general principle that unambiguous words leading to dismissal mean what they say.  The person to whom they are addressed is entitled to assume they were an expression of rational conscious decisions unless there is some indication to the contrary.

In this case, the letter suggested to Miss Willoughby that termination was intentional and it was open to her to take it at face value.  The EAT also took into account that it took CFC some time to rectify the situation.

They found that Miss WIlloughby was, therefore, dismissed and her claim of unfair dismissal will be reheard.  What will be interesting if she wins her claim is the extent to which the offer by CFC to restore the relationship will be taken into account when asessing compensation.