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Can the EAT depart from its own previous decisions?

In rare circumstances, held the EAT in Fentem v Outform Ltd EMEA.

In this case an employment tribunal considered itself bound by the majority decision of the EAT in Marshall (Cambridge) Limited v Hamblin, to conclude that, following a resignation, the invocation of a clause permitting the employer to terminate the contract upon making a prescribed payment calculated by reference to the unexpired period of the employee's notice does not, as a matter of law, amount to a dismissal.

But it was argued that the EAT ought not to follow it, in particular, because it was manifestly wrong. Not so held HHJ Auerbach. The circumstances in which the EAT will depart from its own previous decisions are tightly circumscribed. One of them is where a previous decision is 'manifestly wrong', which means that it can be seen to be obviously wrong, without the need for extensive or complicated argument: per British Gas Trading v Lock. Despite the reasoning in the present decision itself being problematic, the proposition of law said to emerge from Marshall v Hamblin could not be said to be obviously wrong, without needing any detailed consideration or analysis of the arguments or potentially relevant authorities. That being so, it could not be said to be manifestly wrong, so as to enable the EAT to depart from it. The appeal must therefore be dismissed.

Thanks to Dr John McMullen of Spencer West LLP for preparing this case summary.