transfer itself. The claimants argued that "but for" the TUPE transfer, the variation would not have taken place. But, said HHJ McMullen, that was not the test. The question was, what was the reason for the change? What caused the employer to do it? This was a clear question of fact and the finding of the employment judge that the variation was not by reason of the transfer would not be disturbed. The judge had correctly had regard to what was in the employer's mind (the need to correct an obvious error in pay), and also the distance between the transfer and the variation, and his decision was "unimpeachable". 17 October 2011 Where an employer provides an intended, unambiguous written notice of termination to an employee, can that employer subsequently unilaterally resile from the termination notice on the basis that the notice was premature and/or a mistake? No, says the Court of Appeal in CF Capital v Willoughby . Daniel Barnett’s Employment Law Bulletin reports: In the context of potential future redundancies, the parties discussed the Claimant potentially becoming engaged on self-employed basis. However, prior to any self-employment arrangement being agreed, on 22nd December 2008 the Respondent sent the Claimant notification that her employment would terminate on 31st December 2008 and informed the Claimant that an alternative agreement would commence on 1st January 2009. The Claimant contacted the Respondent on 5th January 2009 and stated that she did not accept the alternative agreement and that the Respondent's letter had terminated her employment. The Respondent stated that if the Claimant did not wish to become self- employed then the relationship would continue as before. Once the Claimant failed to return to work, the Respondent concluded that the Claimant had resigned. The ET dismissed the Claimant's unfair dismissal claim on the basis that the Claimant had resigned. The ET held there were 'special circumstances' that needed to be taken into account as the reference to the termination of the Claimant's employment had to be an error on the Respondent's part and as the Respondent withdrew the dismissal once it had realised its mistake. This decision was overturned by the EAT. The CA upheld the EAT's decision that the Claimant had been dismissed. The CA held that the Respondent had intended to dismiss the Claimant and had done so using clear and unambiguous terms. After reviewing relevant case law concerning 'heat of the moment' resignations and dismissals, LJ Rimer concluded that the 'special circumstances' exception is not a true exception to the rule that notice of dismissal cannot be unilaterally retracted; it merely permits the giver of notice an opportunity to satisfy the recipient that he had never intended to give notice. DISMISSAL CANNOT BE RETRACTED – NORMALLY
NHS TERMS AND CONDITIONS OF SERVICE
17 October 2011
CIPP Policy News Journal
09/10/2012, Page 52 of 234
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