Perrys Motor Sales Ltd v Smith

A written service agreement satisfies the requirement for written particulars where it states the employee’s job title. Section 1(4)(f) of the Employment Rights Act 1996 requires either a job title or a brief description of work. It does not require both. A later statement is unnecessary where there has been no material change to the stated title.

A clear resignation remains effective unless the parties agree otherwise. A resignation made in the heat of the moment may be a finding open to a tribunal, but any withdrawal must be communicated promptly. It cannot be withdrawn after employment has ended by dismissal. An appellate tribunal may substitute a contributory-fault percentage only exceptionally, including where the tribunal’s assessment is perverse or inconsistent with its findings.

The employee, a long-serving General Manager, was summarily dismissed for gross misconduct after concerns about financial management at dealerships under his operational control. Before the disciplinary hearing, he gave three months’ notice of resignation. He attempted to withdraw that resignation after his dismissal.

The Employment Tribunal in Manchester upheld his unfair-dismissal claim. It found that he could withdraw a heat-of-the-moment resignation, made no Polkey limitation, awarded two weeks’ pay for a failure to provide written particulars, and reduced his basic and compensatory awards by 50% for contributory conduct.

The employer appealed the written-particulars and resignation findings. The employee cross-appealed the 50% reduction. The central issues were the effectiveness of the resignation, the statutory written-particulars duty, and the permissible assessment of contributory fault.

1. The employer’s appeal succeeded on both grounds, and the employee’s cross-appeal succeeded. The Tribunal’s award for failure to provide written particulars was set aside, its conclusion that there was no Polkey limitation was set aside, and its 50% contributory-fault assessment was replaced with 15%.

2. The 1996 Service Agreement supplied the required particulars. It identified the employee as General Manager. Under section 1(4)(f) of the Employment Rights Act 1996, a statement need give either the job title or a brief description of the work. The employee’s title had not materially changed, so no further notification under section 4 was required. The Tribunal had also determined an unpleaded issue without first inviting submissions.

3. The employee’s notice was clear and unambiguous. The employer’s communications treated it as effective, notwithstanding the later summary dismissal. Applying Harris & Russell Ltd v Slingsby [1973] IRLR 221, a party cannot unilaterally withdraw such notice without the other party’s agreement. The Tribunal was entitled to find that the notice was given in the heat of the moment, but the attempted withdrawal came about 12 days later and after dismissal. There was then no effective resignation left to withdraw.

4. The Tribunal’s conclusion that the dismissal attracted no Polkey limitation was therefore erroneous and was set aside.

5. The dismissal was for conduct, so contributory fault was capable of arising. The Tribunal had found a sufficient causal link because the failure to obtain written assurance concerning the Peugeot clawback formed part of the dismissing officer’s rationale. However, its 50% assessment was perverse and inadequately reconciled with its findings. Those findings showed that the employee had received an oral assurance, acted once the clawback emerged, and arranged meetings to address it. Following the exceptional-intervention approach in Hollier v Plysu Ltd [1983] IRLR 260, the Appeal Tribunal substituted 15%.

• Employment Appeal Tribunal: allowed the employer’s appeal on written particulars and resignation, and allowed the employee’s cross-appeal on the percentage reduction.
• Employment Tribunal, Manchester: upheld the unfair-dismissal claim; awarded two weeks’ pay for breach of the written-particulars duty; declined a Polkey limitation; and reduced the basic and compensatory awards by 50% for contributory conduct.