Hussey v Photogenic Ltd

Whether an employee has been dismissed or has resigned is determined by identifying who really terminated the contract. An Employment Tribunal is entitled to resolve that question on its findings of fact, and the Employment Appeal Tribunal must not retry the factual dispute. Clear words or conduct may amount to resignation. A misunderstanding about an employer’s intentions may be corrected promptly by the employer’s response. If the employee has already terminated the contract, later correspondence may not convert the earlier resignation into a dismissal.

Mr Hussey appealed against the Shrewsbury Employment Tribunal’s dismissal of his unfair dismissal claim. The Tribunal found that he resigned on 9 June 2008 after leaving a note, his keys and the workplace, and that his resignation was not caused by any fundamental breach of contract. It rejected his allegations of prior intimidation, harassment and insults.

Mr Hussey argued that he had understood himself to have been dismissed, and that a later letter from the respondent stating that he could no longer be considered an employee amounted to dismissal under section 95(1)(a) of the Employment Rights Act 1996. The central issue was who had really terminated the employment contract.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude on the facts that Mr Hussey unilaterally terminated his employment on 9 June 2008 and was not dismissed by Photogenic Ltd.
2. The Employment Appeal Tribunal’s function was to correct an error of law, not to retry the factual issue of who terminated the contract. The Tribunal had resolved the conflicting accounts of the conversation on 6 June 2008 and was entitled to reject Mr Hussey’s account that he had been told to quit.
3. The Tribunal’s findings undermined both alleged dismissal and constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996. Mr Hussey’s complaints about his treatment during the preceding year had also been rejected as matters of fact.
4. Any genuine misunderstanding was promptly corrected by Mr Lake’s email of 9 June 2008, stating that Mr Hussey was not being dismissed and that his interpretation was incorrect. The later correspondence, including the statement that Mr Hussey could no longer be considered an employee and the exclusion from the premises, did not displace the earlier termination by the employee. Salary was paid to the end of the month, and Mr Hussey did not return to work.
5. The Tribunal’s approach was consistent with Kwik-Fit (GB) Ltd v Lincham, concerning unambiguous resignation, and with the analysis in Martin v Glynwed that the question remains who really terminated the contract. No error of law was disclosed.

• Employment Appeal Tribunal: Appeal against the Shrewsbury Employment Tribunal’s decision dismissed.
• Shrewsbury Employment Tribunal: By judgment promulgated on 24 April 2009, the unfair dismissal claim was dismissed.