CF capital, employer to Ms Willoughby accidently served her notice and it was later held that she had in fact been dismissed as a result.


In an effort to avoid making redundancies the employer looked to make some of its employees self employed. This is an avenue many employers have been considering given the current economic environment. The situation and option had been explained to Ms Willoughby and she was considering whether or not to take up the opportunity. In her discussions with her manager she had exhibited some interest in the option and it was this which led to the confusion.

Ms Willoughby's manager was of the belief that she had accepted an offer to bring her contract of employment to an end and for her to being working as a self employed contractor. It was not until Ms Willoughby received her notice that she realised that this was in fact the case. The letter noted that her contract would end on the 31 December and after Christmas she contacted her manager. He was surprised at her comments given that he had taken it that she had accepted the new terms. However, he reassured her that she did not have to make the change if she did not wish to and continue to work under her usual terms.

Ms Willoughby did not return to work and as a result the employer's assumed that she had resigned. She then brought claims for both wrong and unfair dismissal. At tribunal it was agreed that there were “special circumstances”, an exception that meant that the normal rules did not apply. Ms Willoughby appealed this decision and it was agreed that the “special circumstances” only applied to circumstances where the words were made in the heat of the moment and accordingly the dismissal was valid.  The employer's appealed. The Court of Appeal agreed with the EAT that Ms Willoughby had been dismissed.  The letter of dismissal used clear and unambiguous words to indicate dismissal. The words used made it difficult to find an exception to the rule. The “special circumstances” rule will require exceptional circumstances and a simple mistake in issuing a letter, will not suffice so as to unilaterally withdraw the dismissal.

Only in very rare circumstances will an employer be able to retract a dismissal. The “special circumstances” exception would likely only be available where an oral statement was given in rage and then quickly regretted.

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