When clear notice of resignation or dismissal is given, whether orally or in writing, the normal rule is that it should be taken at face value and cannot be withdrawn except by mutual consent. Exceptions to this rule are when there are ‘special circumstances’, for example where words are spoken in the heat of the moment or where undue pressure has been exerted, which make it unreasonable to accept the notice without further enquiry.
In CF Capital plc v Willoughby, the employer was looking at ways of reducing staff costs and held meetings with the employees in its sales team to see if any of them would move to being self-employed. Catherine Willoughby, who had worked for CF Capital plc (CFC) since 1990, met with her line manager on 1 December 2008 and expressed an interest in the change in employment status, but only if the terms were acceptable to her. To this end, she asked for further information on the implications of such a change, but this was not provided.
On 22 December, CFC wrote to Ms Willoughby terminating her existing contract with effect from 31 December 2008. Enclosed with the letter was an agency agreement, set to commence on 1 January 2009, which Ms Willoughby was asked to sign.
On 5 January 2009, Ms Willoughby rang the Human Resources manager and told him that she would not be accepting the agency agreement and considered her employment terminated. Her line manager then contacted her to say that if there had been a misunderstanding and she did not wish to become self-employed, her situation would continue as before. CFC continued to assert that there had been a misunderstanding and the letter of 22 December therefore had no effect. Ms Willoughby failed to respond, however. CFC eventually accepted that her employment was at an end, but took the view that she had resigned.
Ms Willoughby brought a claim of unfair dismissal. The Employment Tribunal (ET) was satisfied that there were special circumstances that had to be taken into account and dismissed her claim. These circumstances were that the reference to her termination of employment had been a mistake and that CFC had withdrawn the notice of dismissal once it realised this. The Employment Appeal Tribunal and subsequently the Court of Appeal disagreed.
The Court of Appeal held that the need to make an exception to the normal rule will almost invariably arise in circumstances where the purported notice has been given orally in the heat of the moment by words that may quickly be regretted. It acts as a reminder to the recipient of the notice of the need to be satisfied that the notice was really intended before acting on it. The Court could see no basis for the application of the special circumstances exception in this case, however. CFC intended to dismiss Ms Willoughby and the notice was clear and unambiguous. Whilst it may have been a mistake, it was not one based on a misunderstanding by CFC as it knew that Ms Willoughby had not agreed to be dismissed. In the Court’s view, the notice given terminated her employment as intended and CFC could not unilaterally withdraw it.
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