In 2020, Ms Korpysa was told that because of the COVID lockdown, her workplace would be closing.  She thought that meant that she was being dismissed, and asked her employer, Impact Recruitment Services Limited, for details of her contract, accrued holiday pay entitlement and (said Impact) her P45. Impact took that as meaning that she was resigning, and based on that belief it processed steps to take her off the payroll and send her the P45 it said she had requested.  She in turn took that as confirmation of her assumed dismissal, even though that was not Impact’s intention, and started unfair dismissal proceedings. 

In what must have been one of those is-one-coffee-enough mornings, the Employment Tribunal was therefore faced with deciding the rights and wrongs of a termination of Korpysa’s employment caused by neither party giving notice but each believing that the other had. 

Having determined that Korpysa had not in fact asked for her P45, the ET concluded relatively quickly that Impact’s sending it to her did constitute a dismissal effective from that date.  The next step in assessing the statutory fairness of that dismissal was then to look at the reason for it.  Was it one of the permitted reasons in section 98 Employment Rights Act 1996, because if not, Impact was surely sunk.  Korpysa argued that her employer could not possibly rely on any of those statutory reasons because logically you could not claim to have had a reason for something you did not think you were doing. 

The ET agreed with that reasoning and upheld Korpysa’s unfair dismissal claim.  On Impact’s appeal, however, the EAT was less sure.  To construe “reason” as requiring a positive thought-process on the part of the employer went too far, it thought.  The proper question was what had led to the termination of the employment, i.e. the factual causation of the dismissal, regardless of whether the employer had had any conscious role in it. 

What had caused the employer here to act in a way constituting a dismissal of Korpysa was its genuine belief that she had quit.  If she had, its conduct would have been entirely understandable and unobjectionable.  Given that she had not, however, two further questions arose under ordinary unfair dismissal principles – first, did that belief fall within one of those permitted reasons in section 98 and second, if it did, had Impact acted reasonably in treating those circumstances as justifying that conduct? 

The EAT accepted without too much debate that Impact’s genuine belief could in principle fall within the “some other substantial reason” category in section 98, so that was its first hurdle cleared relatively easily.  But the next one was less obvious – had it acted reasonably?

Usually that means some sort of prior process, some warnings or at least a moment’s consultation with the employee, but strictly those are not steps required by black and white statute.  They are just the moss or barnacles grown on to the statute by decades of case law and guidance.  Even the bare bones of the Acas Code of Practice on disciplinary and grievance procedures are not mandatory.  It is only an unreasonable failure to follow them which will generally be fatal to an employer’s defence.  In the very rare circumstances where it is reasonable not to follow them (perhaps not least because nothing was further from your mind than a dismissal), then the employer may fight on. 

What would an employer’s acting reasonably look like in these particular circumstances?  The EAT sent that question back to the ET to look at again, so we cannot yet report here on whether Korpysa’s accidental dismissal was fair.  At the same time, it offered the ET some thoughts of its own to chew on.  Given that it was not alleged by Impact that Korpysa had said expressly that she was leaving, had it failed to take the steps that any reasonable employer would have taken in those circumstances to verify its understanding of Korpysa’s intentions?  Might that have led to its being able to correct her own mistaken view that she had been dismissed at the time of the site closure?

These are obviously very unusual facts – an employee who thought she had been dismissed on the site closure when she hadn’t plus an employer which believed that she had resigned when she hadn’t, together leading to an actual dismissal on the date of issue of the P45 which neither party thought had happened at all.  Nonetheless, there is a lesson to be taken by employers out of this mess – before rushing to take your employee off the payroll and issuing P45s etc., do just check.  This is exactly the same caution as applies in any case where the employee’s intentions are not crystal clear.  That is not just because they don’t make express reference to quitting or exactly what you can do with your job, as here, but also if they do use such terms but in circumstances where that might reasonably be suspected as not their true intention – in temper, under provocation or pressure, or just off their wheels through alcohol or significant mental ill-health.  Sayings about gift-horses come very readily to mind, but it is best to resist that temptation.  If in any doubt, ask.