Law Report: Employee's dismissal was fair: Ely v YKK Fasteners (UK)) Ltd - Court of Appeal (Lord Justice Neill, Lord Justice Simon Brown and Lord Justice Waite), 6 July 1993

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The Independent Online
An employer, who terminated an employee's contract of employment on the basis of an erroneous belief that the employee had resigned, had dismissed the employee for a reason which justified the dismissal. Such a dismissal was therefore fair.

The Court of Appeal dismissed an appeal by Alan Ely, from the Employment Appeal Tribunal's ruling that his dismissal was not unfair.

In September 1988, the employee was offered employment in Australia and told the employer he would be resigning. In December 1988, the employee told the employer that he no longer wished to emigrate to Australia. The employer treated the employment as terminated. The employee complained that he had been unfairly dismissed.

An industrial tribunal decided that the reason for the dismissal had been the employee's late notification of his change of mind and that that reason represented 'some other substantial reason of a kind such as to justify the dismissal' for the purposes of section 57(1)(b) of the Employment Protection (Consolidation) Act 1978.

Graham N Wood (Globe Wareing Cropper, Liverpool) for the employee; Paul Gilroy (Restons Linaker & Linaker, Runcorn) for the employer.

LORD JUSTICE WAITE said that it might be illogical, when the words of the section were literally construed, to say that anyone could have a 'reason for dismissal' when he was engaged in what he regarded as the acceptance of a resignation. It would be even more illogical, however, to adopt an interpretation of section 57 which would result in dismissal which had occurred through an erroneous insistence upon a supposed resignation being placed in a category of their own in which every such dismissal, regardless of the merits, would be rendered automatically unfair because the employer could not supply a reason for it.

To outlaw such dismissals from the ordinary rules as to fairness would introduce an unnecessary complication into employment relations which would be more likely to confuse than to clarify resignation procedures in the workplace.

It had not been suggested that the employee's late notification of his change of mind was otherwise incapable of qualifying as some other substantial reason for dismissal.