Willoughby v CF Capital The Claimant was told her that her employer, CF Capital had been experiencing difficulties and a way to avoid redundancies was for staff to become self employed. The Claimant expressed an interest and requested detailed written terms of the move. She eventually received an agency agreement on 23 December to effect the move to self-employed status and which stated her existing employment contract would be terminated on 31 December. The Claimant changed her mind and phoned the managing director to say that she did not accept the agency agreement. On 5 January CF Capital phoned and then wrote to the Claimant, to say there had been a misunderstanding and that if she didn't wish to move to self-employment she could continue in employment. The Claimant alleged that she had been dismissed and lodged claims of wrongful and unfair dismissal. CF Capital denied that W had been dismissed and said that she had resigned. The tribunal found that the letter from CF Capital stating that the Claimant's employment would be terminated amounted to a dismissal, however there were 'special circumstances', as CF Captial had genuinely believed that W had agreed to become self-employed, and the dismissal was withdrawn as soon as practicable. The tribunal held that the Claimant had resigned, having refused the explanation of the situation and offers to continue in her employment. She appealed. The EAT allowed the appeal. The tribunal had failed to ask whether, in the 'special circumstances', the Claimant was entitled to assume that the decision to dismiss her was a conscious, rational decision. Put another way, was there anything to indicate to the Claimant that the words of dismissal were not to be taken at face value? The EAT noted in reviewing 'special circumstances' cases that the main issue has been words spoken in the heat of the moment and then quickly retracted. In its view,"... If the fact that an employer or employee was or might in some way have been mistaken in issuing a letter of dismissal or resignation were of itself a special circumstance, the exception would to our mind have overtaken the rule. Employers must often think that employees are making a mistake in resigning; but they are still generally entitled to take a resignation at face value. Employees must often think that an employer is making a mistake in dismissing them; but they are still generally entitled to take a letter of dismissal, or words of dismissal, at face value." On the basis of the tribunal's finding that the reference to termination in the letter was intentional, not an error, the Claimant was entitled to assume that this was a conscious, rational decision and to consider that her employment had been terminated. In addition the tribunal was wrong to hold that the withdrawal of the dismissal was timeous. For a clearly expressed dismissal to be retracted it must be done quickly. In Kwik-Fit (GB) Limited v Lineham, a reasonable period of time was described as 'relatively short, a day or two'. In this case there was no retraction for much longer and the intervention of the Christmas holiday period was no excuse. In essence therefore employers cannot retract dismissals, once the words have been said, or written, and employees are entitled to take such words at face value. Full case UKEAT/0503/09/LA
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