Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary
What is the difference between dismissal and mutually agreed termination?
The EAT has given a good example on the facts in Francis v Pertemps Recruitment.
In this case Mr Francis was employed by Pertemps, an agency, which placed him in work with a client whose identity was specified in the contract of employment. Subsequently that client no longer had need for the services of Mr Francis. Pertemps therefore offered Mr Francis the choice either of two weeks' notice plus redundancy pay or two weeks' notice with the agency looking out for fresh work with a view to him working for a new client.
At first he chose the latter. But then he changed his mind and chose the former. The HR department wrote to him confirming his position was redundant and that he was to treat the letter as "formal notice of redundancy". Furthermore the letter told him that he had a right to appeal "against the decision to terminate your employment". Mr Francis did in fact appeal (although this was unsuccessful).
When Mr Francis claimed unfair dismissal, Pertemps argued that there was no dismissal but that the employment had ended consensually, by mutual agreement.
The employment tribunal accepted this argument but the EAT overturned it. The question of whether there was a dismissal for unfair dismissal purposes depended on whether the contract of employment had been terminated by the employer. All the language used was consistent with termination by the employer. The choices offered to Mr Francis both involved his being given notice. The employer's arguments that "notice" and "redundancy" were loose terms, not intended to have their formal meaning, and that the right to appeal was "meaningless", were rejected as unrealistic.
The appeal was allowed and a finding that there had been a dismissal was substituted.