In the case of CF Capital plc v Willoughby the Court of Appeal has held that an employer's assertion that it had made a mistake in sending a letter of dismissal did not prevent the clear, unambiguous words of dismissal from taking effect - the employer could not unilaterally withdraw the notice of dismissal. The 'special circumstances' exception, which, in appropriate cases, may allow the giver of the notice to withdraw it where the circumstances indicate that he never intended to give it in the first place, provided no escape from such a conclusion.
In early December 2008 the Claimant’s manager told her that CFC plc was considering requesting staff to become self-employed in order to avoid redundancies. The Claimant expressed an interest and requested detailed written terms of the move. Instead, she received an agency agreement on 22 December stating that her employment contract would terminate on 31 December when she would move to self-employed status. After taking legal advice, the Claimant phoned the managing director to say that she did not accept the agency agreement. On 5 January 2009 her manager informed the Claimant that there had been a misunderstanding and that she could continue as an employee if she wished. The Claimant maintained that she had been dismissed and lodged claims of wrongful and unfair dismissal. CFC plc denied that W had been dismissed and claimed that she had resigned.
The tribunal found that 'without more', the letter from CFC plc stating that the Claimant's employment would be terminated would amount to a dismissal. However, there were 'special circumstances', as the manager had genuinely believed that the Claimant had agreed to become self-employed, and the dismissal was withdrawn as soon as practicable after the Claimant alerted them to the mistake. Consequently, the Claimant had resigned, having refused the explanation of the situation and offers to continue in her employment. The Claimant appealed.
The Employment Appeals Tribunal allowed the appeal. The tribunal had failed to ask whether, in the 'special circumstances', the Claimant was entitled to assume that the decision to dismiss her was a conscious, rational decision. In other words, was there anything to indicate to the Claimant that the words of dismissal were not to be taken at face value? On the basis of the tribunal's finding that the reference to termination in the letter was intentional, not an error, the Claimant was entitled to assume that this was a conscious, rational decision and to consider that her employment had been terminated. Further, the tribunal was wrong to hold that the withdrawal of the dismissal was timeous. CFC plc appealed.
Dismissing the appeal, the Court of Appeal stressed that the 'rule' is that a notice of resignation or dismissal has effect according to the ordinary interpretation of its terms. Once such a notice is given, it cannot be withdrawn except by consent. The 'special circumstances' exception, the Court continued, is not strictly a true exception to the rule. Rather, it is a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, he must satisfy himself that the giver of the notice did really intend to give a notice of resignation or dismissal. The need for such an exception will almost invariably arise in cases where the purported notice has been given orally in the heat of the moment by words that may quickly be regretted. Thus, in appropriate cases, the recipient of a notice will be well advised to allow a 'cooling off' period before acting upon it - which the giver of the notice may use to recant or withdraw his words.
However, the Court of Appeal was reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal, as this would be inconsistent with the principle that such a notice cannot be unilaterally retracted or withdrawn. In this case, the 'special circumstances' exception clearly did not apply, as CFC plc had intended to dismiss the Claimant in the letter. The giving of such notice may have been a mistake but, once given, it could not be unilaterally withdrawn.
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