When ‘fired’ means ‘fired’

When is a dismissal a dismissal?

This was highlighted in the recent case of Cosmeceuticals Limited vs Ms T Parkin, where a conversation between a managing director and her employer was closely examined to determine whether a dismissal had taken place.

Ms Parkin returned from a sabbatical, which was taken to support her family, to a meeting in which she was told that there were a number of performance concerns with her work and that “she could not return to her role as managing director”. Communication ensued between the parties whereby Ms Parkin suggested she had been dismissed, and the employer refuted this suggesting she was on a different contract, although placed her on gardening leave shortly after.

This was followed by a letter, some weeks later, which was done for ‘clarity’ to confirm that Ms Parkin was being given notice of the termination of her employment and a termination date.

Tribunal proceedings followed, and it was accepted by both parties that the date of termination was at the expiry of Ms Parkin’s notice. In the absence of any procedures being followed, not to mention a failure by the employer to act reasonably, Ms Parkin was successful at Tribunal. The only point that the Tribunal raised was that the date of termination could be the date of that fateful meeting rather than at the expiry of Ms Parkin’s notice.

Not surprisingly, faced with a Judgment for Unfair Dismissal, the employer appealed to the Employment Appeal Tribunal in the hope that they would find that the date of dismissal was in fact the date of the meeting, and place Ms Parkin in the position when her claim would be out of time.

When was the dismissal?

In order for an employee to be dismissed, by the statutory language in the Employment Rights Act 1996, they must either have their contract terminated with or without notice, or be in a position whereby they are entitled to terminate the contract due to the employer’s conduct.

If we consider the meeting where Ms Parkin was told that she could not return to her role, this is the employer withdrawing her contract and imposing different terms of employment. This could be considered a dismissal through conduct (within the first part of the language above), but be dependent on how the conduct or words would be interpreted by an objective observer, thus confirming how the employee should have taken it.

The Employment Appeal Tribunal considered this and stated that where an employer makes it clear to an employee that it is withdrawing the contract of employment, even if they are replacing it with a new contract, this amounts to communication of a dismissal.

To this end the employer’s actions by subsequently placing Ms Parkin on gardening leave or by giving her notice were ineffective as the employment contract had already come to an end.

Communication is key

This case highlights the importance of what the employer says or does when dismissing an employee and shows that an employer’s subsequent action, such as the giving of notice, will not protect an employer who has communicated a dismissal, expressly or through conduct. It is also a timely reminder of the importance of adhering to the correct procedure when taking this step.