Mistaken but genuine belief in employee’s resignation can be a fair reason for dismissal
The Employment Appeal Tribunal (“EAT”) has delivered judgment in the case of Korpysa v Impact Recruitment Services, concluding that an erroneous but genuine belief in a state of affairs which, had it existed would have been a fair reason for dismissal, could amount to ‘some other substantial reason’ (“SOSR”) and therefore a potentially fair reason for dismissal under the Employment Rights Act. In this case, the employer erroneously but genuinely believed that the employee had resigned.
Facts of the case of Korpysa v Impact Recruitment Services
Ms Korpysa was employed by Impact Recruitment Services (“Impact”), an employment agency, and was placed at Howden Joinery Ltd (“Howdens”) as a Warehouse Operative in January 2018. Following the national lockdown in March 2020, the majority of agency staff were told that Howdens would be shutting down. Although some agency staff were requested to continue working, Ms Korpysa was not amongst them. This caused some confusion in Ms Korpysa’s mind as to her employment status.
In conversation a week later with Mr Filipski, Impact’s on-site account manager, Ms Korpysa asked Ms Filipski for her holiday pay to be paid to her. Impact alleged that Ms Korpysa had also asked Mr Filipski for her P45 to be issued because she had found new employment and that Mr Filipski had therefore taken this to mean that Ms Korpysa was resigning. Ms Korpysa denied having asked Mr Filipski for her P45 or having told him that she had found another job. Impact nevertheless proceeded to process Ms Korpysa’s resignation and issued her P45. Ms Korpysa brought claims in the Employment Tribunal (“ET”) of unfair dismissal and age discrimination.
Employment Tribunal decision
The ET dismissed Ms Korpysa’s age discrimination claim but upheld her claim for unfair dismissal. In concluding that Ms Korpysa had been unfairly dismissed, the ET held that Impact had dismissed her because of their mistaken belief that she had resigned and this was not one of the potentially fair reasons for dismissal under the Employment Rights Act.
Employment Appeal Tribunal decision
Impact appealed to the EAT, who overturned the ET’s decision and concluded that, in a case of this type, the factual reason for the mistaken belief is potentially capable of being treated as SOSR. The EAT noted that the threshold for what counts as a ‘substantial’ reason is relatively low but cautioned that there may be cases where an ET can properly conclude that the particular reason relied upon in a case, although of a kind that could potentially meet the definition of SOSR, will nevertheless fail to qualify as ‘substantial’ in that case.
The EAT remitted Ms Korpysa’s claim to a fresh tribunal to consider whether in the circumstances of her particular case, Impact had shown that the factual reason for dismissal was, in fact, SOSR and, if it was SOSR, whether her dismissal was fair or unfair.
Comment
This is a helpful judgment for employers as it reinforces the ‘relatively low threshold’ in a reason for dismissal falling within the definition of SOSR, although it will always still fall to the employer to demonstrate that the reason was ‘substantial’ and that the dismissal was fair in all of the circumstances.
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Saira Ramadan is a partner in our employment law team. If you have any questions about any of the issues covered in this article, or need legal advice, please get in touch with the team today.