Employment Law Advocates

The judgment of the Employment Appeal Tribunal of Willoughby v C F Capital reviews and applies the law about retracting unambiguous words of dismissal. It confirms, in line with the authorities, that such words can only be retracted if they were uttered in the heat of the moment and if the retraction takes place immediately after a short cooling-off period. In this case, the employer had delayed for too long before attempting to retract the dismissal.

The decision also confirms that the law in this area is symmetrical. Unambiguous words of dismissal are treated in exactly the same way as unambiguous words of resignation by an employee so that both are equally difficult to retract. However, there is a quite different line of authorities which suggests that an employer has an alternative that is not available to an employee in the converse situation – reinstatement. In Roberts v West Coast Trains, the Court of Appeal ruled that an employer could choose to unilaterally reinstate an employee who had appealed against dismissal. In that case, there had been a contractual disciplinary procedure which allowed for reinstatement but the case has been interpreted widely so that a contractual procedure is unnecessary and, arguably, the employee need not even appeal.

The problem with this wide reading of Roberts is that it leads to the absurdity, in a case like this one, that an employer can say, “Sorry, I did not mean to dismiss you,” and he is liable for unfair dismissal but, if he says “I reinstate you” instead, he is completely off the hook. It is curious, therefore, that Judge Richardson does not mention the decision in Roberts at all.

There is also a guest appearance by my old favourite, Buckland. Judge Richardson reasons that, if the words of dismissal amount to a repudiatory breach or represent the culmination of a course of conduct amounting to a repudiatory breach, then they cannot be retracted by the employer. This does not seem to be quite correct. After all, such a repudiatory breach would have to be accepted by the employee which would mean that she would have to be in employment in order to resign from it and, therefore, the words of dismissal must have been retracted after all. Buckland seems to me to be more helpful in limiting the effect of Roberts but it does this, not by preventing an employer from reinstating an employee, but rather by preserving the right of the employee to resign after having been reinstated. If there has been a repudiatory breach, the employee can elect whether to agree to the reinstatement or not.