On taking legal advice, the employee decided that she did not wish to accept the agency agreement. The employer attempted to retract the notice it had given her. The employee asserted that she had in fact been dismissed, and went on to bring claims of wrongful dismissal and unfair dismissal.
The Employment Tribunal found for the employer. It decided that this was a “special circumstance” entitling the employer to take back the notice it had given.
The employee appealed that judgment and the EAT found in favour of the employee, deciding that the employer’s mistake in issuing a letter of dismissal was not sufficient to be a “special circumstance”, such as notice given hastily in the “heat of the moment”, which would let it withdraw the notice it had given. There had therefore been an unfair and wrongful dismissal. The employer in turn appealed against this decision, arguing that the EAT had taken too narrow a view of when the “special circumstances” doctrine applied.
The Court of Appeal dismissed the employer’s appeal. It held that the notice of termination had indeed taken effect and that the employee was dismissed. The employer’s mistaken assumption that the employee would accept the proposed self-employment terms was not a “special circumstance”.
Employers should be mindful that unambiguous notice of termination can very rarely unilaterally be withdrawn, and that an employee will be able to take such notice at face value unless the employer can show that it did not intend to terminate the contract.