It may seem like an obvious statement, but to succeed in a claim for unfair dismissal a Claimant (the person suing) must demonstrate that they’ve been dismissed by the Respondent (their employer). It goes without saying that if there’s no dismissal then there’s no claim for unfair dismissal. Although the circumstances of dismissal are normally fairly clear cut (i.e. you’re told to leave and not come back) they sometimes are not. Let’s therefore look at the ways in which the contract of employment can be terminated (or put alternatively, you can be dismissed).
There are three general “types” of dismissal:
- The employer can terminate the contract of employment
- The employee can terminate the contract of employment
- The contract of employment terminates at the end of a fixed term
In this post we’ll look at the circumstances in which an employer is deemed to terminate the contract of employment. We’ll look at the other two methods of dismissal in future posts.
Termination of the contract of employment (dismissal) by the employer
The contract of employment can be terminated by an employer with or without notice. Where termination is with notice (i.e. the employee’s given notice of termination) then the situation is fairly simple. Both parties are aware that the contract of employment will be terminated and the outstanding issue is whether the dismissal is fair or not (which is not considered here).
Where the dismissal is without notice (also known as “summary dismissal”) then the important element is whether the employer intended to dismiss the employee or not. Again, this can be a fairly simple matter. If you’ve gone through a disciplinary process and are handed a letter notifying you that you’re being summarily dismissed then it’s fairly clear that your employer intends to dismiss you. If the employer’s intention to dismiss is clear then the employee is entitled to take this at face value.
However, it becomes a bit more difficult where the employee is summarily dismissed and the employer’s intention isn’t completely clear. An objective view of the situation must then be taken and the question asked: “How would a reasonable observer view the employer’s intention?”. The reasonable man must consider the context of the dismissal. If the wording of the purported dismissal is ambiguous then the words of “dismissal” must be given their ordinary meaning in the appropriate context. For example, in a high-pressure situation (such as the trading floor) the words “fuck off” may be heard quite regularly and have no meaning outside of a venting of frustration. However, in situations where these words aren’t normally heard (such as, for example, a children’s nursery) such words (if not often used) may be taken at face value by the employee if they perceive that they’re being dismissed. Again, the assessment of the situation must be objective – the question is whether the reasonable person in that context would normally take those words as dismissing them.
If you think that you’ve been dismissed by your employer but are not sure then the important element to look at is the intention of your employer when you were told to leave. If it was clear that you weren’t being dismissed (i.e. you were told to leave and come back the next day) then it is probable that you would be deemed to have not dismissed and that you did in fact resign. However, this can be a potentially complex area and it is always advisable to take expert advice on it.
Redmans Solicitors are employment lawyers based in Richmond, London. They are specialist unfair dismissal solicitors and offer employment law advice and compromise agreement advice to employers and employees.