Islanders Vets v Gemma Mortland

Whether an employee has been dismissed or has resigned on agreed terms depends on the proper contextual reading of the parties’ communications. An employer’s prompt acceptance of a request for early release from employment does not, without more, amount to a wrongful dismissal.

Where notice pay is recoverable, its maximum is determined by the notice period which the employer was contractually obliged to give. A tribunal must therefore apply the contractual notice provision rather than the longer notice which the employee was required to give.

The employee resigned on 7 October 2019. She stated that she would work for two months, but asked to be released sooner if possible. The employer replied that it would release her on 11 October and subsequently stated that her last day was 9 October.

The Employment Tribunal awarded notice pay calculated by reference to a two-month period, reduced for mitigation. The employer appealed that award. The central issues were whether the correspondence amounted to a wrongful dismissal and, if so, the contractual period by reference to which notice pay was to be assessed.

1. Appeal allowed. The notice-pay award could not stand. No further sum was payable beyond the awards for unauthorised deductions and holiday pay, which were not in issue.

2. The Employment Tribunal erred in treating the employer’s communications of 7 and 9 October 2019 as a wrongful dismissal. Although the latter communication could, in isolation, appear to be a summary dismissal, it had to be read with the employee’s earlier request to be released as soon as possible. Properly construed, the correspondence was an agreement to the employee’s resignation on agreed terms, not a dismissal.

3. Accordingly, the employee was not entitled to notice pay. The tribunal’s contrary conclusion was an error of law.

4. In any event, the tribunal had failed to apply the contractual notice clause. It provided that, within the first year of employment, the employer could terminate employment on one week’s written notice, whereas nurses were required to give two calendar months’ notice. Applying Janciuk v Winerite Ltd [1998] IRLR 63, any maximum notice-pay award was limited by the period of notice which the employer had to give. It could therefore have been no more than one week’s pay.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the Employment Tribunal’s notice-pay award and held that no notice pay was due.
• Employment Tribunal: Awarded the employee notice pay for one month after finding that the employer’s communications amounted to a wrongful dismissal. It also made awards for unauthorised deductions and holiday pay.