Coffin Mew Employment News
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California Bar Association Newsletter
“I’ve learned from my mistakes and I’m sure that I can repeat them exactly.”
Peter Cook
Welcome
As you will all know, I’m a big fan of egg chasing, or as it is more commonly known, rugby. This weekend will see the final of the Rugby World Cup when New Zealand takes on France. Even though I am an ardent England rugby fan, I couldn’t help but feel sorry for the Welsh team last week when they were on the receiving end of an incredibly harsh decision by the referee when he decided to send off the Welsh team captain for a ‘dangerous’ tackle.
The general consensus was that the sending off was a mistake which left the Welsh team with a man down for most of the game. Despite a valiant effort by our Celtic neighbours, they lost by one point to our Gallic friends from over the Channel.
The only positive thing to come out of the referee’s mistake (other than the fact that I can jokingly mock one of my Welsh work colleagues) is that it allows me to clumsily stumble into this week’s case about the consequences of when an employer makes a mistake at work…
The Legal Bit
In the case of CF Capital plc v Willoughby, Ms Willoughby worked in the sales team at the company. In order to reduce the sales team’s overheads, the company decided to see if any members of the team would move from being employees to becoming self employed.
Ms Willoughby was invited to a meeting with her line manager, Mr Keeley to discuss this option. At the meeting Ms Willoughby indicated that she would be interested in becoming self employed but she would need to consider the terms, which Mr Keeley said he would provide in writing.
Despite chasing Mr Keeley several times, Ms Willoughby didn’t receive any further information or the letter that had been promised. Three weeks after the meeting, Ms Willoughby then received a letter from Mr Keeley. To Ms Willoughby’s surprise the letter referred to an agreement by her to a change in her employment status. The letter enclosed an agency agreement and concluded by saying that Ms Willoughby’s employment with the company would be terminated one week later.
After seeking legal advice Miss Willoughby rejected the offer of the agency agreement and told the company that as her employment had ended she would not be returning to work.
On being told of this conversation Mr Keeley immediately rang Ms Willoughby. It transpired that Mr Keeley mistakenly left the original meeting thinking that Ms Willoughby had agreed to this option. He explained this to Ms Willoughby and assured her that if there had been a misunderstanding her situation could continue as before.
Despite Mr Keeley’s best efforts, Ms Willoughby choose not to return. She bought a claim for unfair dismissal arguing that the letter sent by Mr Keeley had dismissed her and could not subsequently be retracted. The company’s primary argument to defend the claim was that the dismissal letter was ineffective due to the “special circumstances” surrounding the misunderstanding.
The Employment Tribunal felt that a reasonable person in Ms Willoughby’s position would have realised on receiving the letter in the context of the earlier meeting that something was seriously wrong and that there had been a mistake. They found that this amounted to a “special circumstance” meaning that the dismissal was not effective.
Miss Willoughby appealed this decision and the case was eventually heard by the Court of Appeal.
Basically, the Court of Appeal decided the Employment Tribunal’s decision was wrong. It reiterated the basic rule that an employer who uses unambiguous words of dismissal, which are understood by the employee, will dismiss an employee.
Whilst the Court of Appeal agreed that there are some special circumstances where this rule will not apply, this is only in the limited case where the employer had not intended to dismiss the employee by its words, for example when words are said in the heat of the moment.
This was not the case here. There was a clear and rational decision on behalf of the company to dismiss Ms Willoughby. The fact that this was based on a misunderstanding or that Ms Willoughby should have realised there was a mistake was not relevant.
This case confirms that once given, an employer’s notice of dismissal can very rarely be withdrawn without the employee’s consent. Whilst, on the face of it, this judgement seems like a harsh one it is likely that the Employment Tribunal will take into account the company’s attempts to rectify its mistake when considering the compensation awarded to Ms Willoughby. However, this case is a useful reminder that in these situations employers should always ensure they are certain that arrangements have been agreed with the employees, rather than rely on assumptions.
As an aside...
As I write this week’s article, it is now ‘silly o’clock’ on Thursday night, largely due to the fact that I spent an hour sitting in a traffic jam (to travel a couple of miles) on my way home from Guildford.
My frustration from going nowhere fast reminded me of a recent story about how the Chinese authorities have tried to help frustrated commuters on the Beijing underground. Believe it or not, the Beijing tube system now includes several giant punch bags strategically placed on the busiest platforms, so that stressed out commuters can vent their anger on the punch bags rather than the tube workers.
I was considering whether to suggest that we introduce a corporate punch bag at the firm. However, I would hazard a guess that within 24 hours a picture of my face would be on it, so I think that I’ll forget the idea for now…
Until next week.
Darren
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