Impact Recruitment Services Ltd v Korpysa

Where an employer’s conduct amounts to dismissal because the decision-maker genuinely but mistakenly believed that the employee had resigned, that belief is the factual reason for dismissal. It is capable of being some other substantial reason within section 98(1)(b) of the Employment Rights Act 1996.

The tribunal must decide whether the employer has established such a reason and, if so, determine fairness under section 98(4). A genuine mistake does not make dismissal automatically fair or unfair. The tribunal may need to consider whether the belief was reasonably held and whether a reasonable employer would have made further enquiries before acting on it. No fixed procedural step is required in every case.

The claimant was supplied by the appellant employment agency to work as a warehouse operative. After the first national lockdown, she sought holiday pay and communicated with the appellant’s on-site manager. The Employment Tribunal majority found that she had not resigned, but that the manager genuinely and mistakenly believed that she had done so. Sending her P45 therefore effected a dismissal.

The majority held that the mistaken belief was not a potentially fair reason and that the dismissal was procedurally and substantively unfair. The appellant appealed only against the unfair-dismissal decision. The central issue was the correct application of sections 98(1)(b) and 98(4) of the Employment Rights Act 1996 where dismissal follows a genuine but mistaken belief in resignation.

1. Appeal allowed. The Tribunal’s conclusion that the claimant had been unfairly dismissed was quashed and the case was remitted to a different tribunal for determination on the existing findings of fact.

2. Applying Ely v Y.K.K. Fasteners (UK) Ltd [1993] IRLR 500, the manager’s genuine but mistaken belief that the claimant had resigned was the factual reason for the conduct which amounted to dismissal. It was therefore the reason for dismissal for the purposes of section 98.

3. That factual reason was capable of being some other substantial reason of a kind such as to justify dismissal under section 98(1)(b) of the Employment Rights Act 1996. The majority erred by treating it as intrinsically incapable of being a potentially fair reason, without deciding whether it was substantial on the facts found. The EAT did not decide that every genuine but mistaken belief in resignation must satisfy section 98(1)(b).

4. If the employer establishes a section 98(1)(b) reason, fairness must be assessed under section 98(4). The Tribunal also erred by treating procedural unfairness as automatic. A tribunal must assess all the circumstances, including whether the belief was reasonably open to the decision-maker and whether a reasonable employer would have taken further steps to establish whether the employee had resigned. There is no universal minimum procedure.

5. The remitted tribunal is bound by the original Tribunal’s factual findings. It is to receive further submissions and decide whether the reason was substantial and, if so, whether the dismissal was fair.

• Employment Appeal Tribunal: Appeal allowed: [2025] EAT 22. The majority unfair-dismissal conclusion was quashed and remitted to a different tribunal.
• Employment Tribunal, Watford: By a majority, upheld unfair and wrongful dismissal claims; unanimously dismissed age-discrimination claims. No citation was stated in the judgment.