Can you retract a decision to dismiss?

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Posted in:HR and Employment|December 9, 2011 | Join the mailing list

As a general rule, an employer who uses unambiguous words of dismissal will dismiss the employee and exceptions to this rule are limited. Therefore, it is very difficult for employers to withdraw a notice of dismissal once it has been given, even if there has
been a genuine mistake or misunderstanding.

In the recent case of CF Capital plc v Willoughby, the employer, with a view to limiting redundancies, discussed with the claimant the possibility of becoming engaged on a self-employed basis. Before any such arrangement was agreed, the employer sent the claimant
a letter confirming that her employment would terminate on 31 December 2008 and she would be engaged on a self-employed basis from 1 January 2009. The claimant did not accept this arrangement and the employer later confirmed that if she did not wish to become
self-employed, her employment would continue as before. The claimant failed to return to work and the employer concluded that she had resigned.

The Court of Appeal found that the claimant had been dismissed and held that an employer’s assertion that it had made a mistake in sending a letter of dismissal did not prevent the clear, unambiguous words of dismissal from taking effect – the employer could
not seek to withdraw the notice of dismissal. The ‘special circumstances’ exception, which, in appropriate cases, may allow the giver of the notice to withdraw it where the circumstances indicate that he never intended to give it in the first place, provided
no escape from such a conclusion.

This case confirms that employers and employees will rarely be able to rely on "special circumstances". Special circumstances are most likely to occur in situations where one of the parties is behaving irrationally, so as to call their words or actions into
question, for instance, where the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

Therefore, employers should be mindful that as a general rule unambiguous letters of dismissal will be held to be effective. Before making a decision to dismiss (whether through that be through a redundancy or a disciplinary process), it is strongly advised
that legal advice is taken from the outset to ensure a proper and fair procedure is followed and to avoid mistakes being made.

To discuss how we can provide further advice in connection with these issues, please contact Alison Loveday, Partner and Head of our Employment team, by email to or alternatively you can call Alison on 0161
833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for article’s accuracy or correctness is assumed by Berg or any of its partners or employees.
Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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