Legislation
Case law: intention to dismiss is not actual dismissal
30/06/2010 10:35
Employers will welcome clarification of the circumstances in which an employee is treated as having been dismissed, as given in a recent decision.
This case involved an employee who worked as a security guard. He was told by his employer that:
- he was no longer required on the client’s site;
- during a consultation period of four weeks, the employer would look for alternative employment for the employee with another client;
- during that time, the employee would not be paid, in accordance with standard practice in the industry; and
- if an alternative position could not be found, the employer said that it ‘could have no alternative other than to issue you notice and terminate your employment due to the client request which acts as reason enough.
Before the end of the consultation, the employee raised a grievance then started proceedings for unfair dismissal. An employment tribunal ruled that the employee had been unfairly dismissed, but that ruling was overturned by the Employment Appeal Tribunal (EAT).
The EAT stated that the employee had not actually been dismissed, and approved the following legal propositions:
- a contract of employment is only terminated by an employer if there is a specified or ascertainable date on which the contract is to cease;
- to be effective, dismissal must be communicated to the employee; and
- a warning that dismissal is likely, or even that dismissal is inevitable by a certain date, will not amount to a dismissal; notice to terminate a contract of employment must either state the date of termination or give details from which the date can be worked out.
Operative date
- Immediate