Did you know the words you use in a termination letter can change a mutually agreed termination into a dismissal?!

22-08-2013 10:13

We can find an example of this in practice on the case of Francis v Pertemps.  In this case Mr Francis was no longer required by the company within which Pertemps had placed him.  The company was identified in his contract of employment.  As a result he was offered the choice of 2 weeks’ notice and a redundancy payment or 2 weeks’ notice with the agency and they would carry on looking for alternative work with a new client.  After being somewhat indecisive initially he eventually chose the 2 weeks’ notice and redundancy. 

Mr Francis received a letter from the HR department confirming his position was redundant and the letter was ‘formal notice of redundancy’.  He was also offered the right to appeal.  He exercised this right but was unsuccessful.

Mr Francis claimed unfair dismissal.  Pertemps argued that he had not been dismissed, his employment had terminated by mutual agreement.  This argument was accepted by the Employment Tribunal but subsequently overturned by the EAT who made a finding there was a dismissal. 

The question of whether there had been a dismissal for unfair dismissal purposes depended on whether the employer had terminated the contract of employment.  The EAT decided that the language used by the employer was consistent with termination by them.  They had used words such as ‘notice’ and ‘redundancy’ and offered an appeal.  Pertemps unrealistic argument that those words were just loose terms not intended to have their formal meaning and the appeal was meaningless were rejected.  

This case highlights that care should be taken when drafting a termination letter and it should accurately reflect the actual circumstances of the termination, if it was an agreed termination, it should state that in the letter.  

If you would like any more information on this area or any other employment law issue, please contact Christina Merrington.



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