Is it reasonable for an employee to believe they have been dismissed – what are the tests*
This issue arose in case ADJ-00026224. In that case the employee placed reliance on Cox Corbett and Ryan Employment Law First Edition 2009 at paragraph 21.15 where it is stated:
“Whether or not a dismissal occurred is determined in accordance with an objective standard. In many cases, the fact of dismissal will be obvious and undisputed, for example, where an employer writes a formal letter or termination to the employee. However, complications may arise where the employer has not acted with clarity as to his or her intentions. The test in such circumstances is whether a reasonable employee in the circumstances would consider that the employer’s words and/or actions amounted to a dismissal.”
The employee in this case relied on the test stated in Devaney-v- DNT Distribution Company Limited UD412/1993 and in Tanner -v- DK Keane Limited 1978 IRLR110111 as being:
“How would a reasonable employee in all the circumstances have understood what the employer intended by what he said and did”. It was also claimed that even in the absence of a formal statement from an employer than an employee is dismissed the actions of an employer may have also be deemed to amount to a dismissal of an employee as in the case of Mansour -v- Romansa Limited UD360/2004 cited in Ryan Redmond on Dismissal Law Third Edition 2017 at paragraph 22.21 is one where the EAT when confronted by conflicting evidence where an employer had told an employee “leave now” it concluded it was reasonable for the employee to believe that he had been dismissed. It found support for that conclusion the fact that no effort had been made by the manager to contact the employee to resolve the dispute.”
The Adjudication Officer in this case quoted the case of Devaney-v- DNT Distribution Company Limited UD412/1993 as being
“…what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention”
In this case compensation was awarded.
This is a useful decision in setting out the law in some detail. This is particularly relevant where there is confusion as to whether an employee was dismissed or not.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.