In this case, the Employment Appeal Tribunal (“EAT”) decided that an employer's genuine but mistaken belief that an employee had resigned may constitute a potentially fair dismissal for some other substantial reason (“SOSR”).
The Claimant was employed by the Respondent, which is an agency that supplied her services to Howden Joinery Limited ("Howden"). Following the March 2020 national lockdown, the majority of agency staff were told that Howden would be shutting down. Although some agency staff were asked to continue working, the Claimant was not among them, and she was instead "laid off" by Howden. The Claimant contacted the Respondent a week later. The Respondent claimed she asked for holiday pay and her P45 and, accordingly, thought she had resigned. However, the Claimant denied this, arguing she had not asked for her P45 or resigned. After the Claimant received her P45, she brought various claims, including unfair dismissal.
The Employment Tribunal (“ET”) upheld the unfair dismissal claim, deciding that the Claimant had not requested her P45 – instead she had merely requested a copy of her contract of employment and an advance of holiday pay, which was not a clear and unequivocal resignation. The Respondent was wrong to think the Claimant had resigned and therefore the dismissal was unfair.
The Respondent appealed to the EAT, stating that because it had not been purporting to dismiss the employee at all, it could not have had any reason for dismissal in mind. The Claimant did not participate in the appeal proceedings.
The EAT concluded that the reason for dismissal was a genuine but mistaken belief that the Claimant had resigned. The EAT stated that a mistaken belief is potentially capable of being some other substantial reason justifying dismissal. The ET had failed to consider this. The EAT therefore returned the case to the ET to determine whether the reason for dismissal was a SOSR reason and if so, whether the dismissal was fair or not. Although the EAT concluded that a mistaken but genuine belief could be treated as a SOSR reason, it stopped short of holding that this would always be the case.
The case highlights the variety of reasons that can come within the definition of SOSR. However, only a belief that is genuine, reasonable and fair in all the circumstances will be capable of amounting to SOSR.