Unfair dismissal without a dismissal?

In order to claim unfair dismissal you have to be dismissed. No, really. The EAT in Mr Clutch Auto Centres v Blakemore has overturned a Sheffield Tribunal decision that an employee’s employment was continuing, despite the fact that he had brought an unfair dismissal claim and there was no dispute between the parties that his employment had terminated.

In June 2013, Mr Blakemore brought claims for unfair dismissal, wrongful dismissal, holiday pay and outstanding wages. The key issue in dispute between the parties was whether Mr Blakemore had resigned on 18 October 2012 (as his employer, Mr Clutch contended) or whether he had been dismissed by his employer on 6 November (as Mr Blakemore contended). Mr Clutch compounded the confusion to some extent by arguing that had Mr Blakemore not resigned they would have sacked him anyway.  Both parties however accepted that Mr Blakemore’s contract of employment had terminated on or before 6 November 2012.

It must have therefore come as quite a surprise to everyone when the Tribunal rejected both parties’ contentions and instead declared that in its opinion neither party was right and Mr Blakemore in fact remained an employee of Mr Clutch.   The reasoning of the Tribunal is gloriously, though misleadingly, simple.  Mr Blakemore did not resign when the employer said he did and therefore its letter to him accepting that resignation was a nullity and not a dismissal.  Perhaps sensing deep down that this was skating on some legally quite thin ice, the Tribunal took the slightly unusual step of “urging the parties to resolve matters between them in order to avoid [Blakemore] needing to present a ….complaint…. in relation to monies owed”, which is broadly what he thought he had already done.  He had taken the advice of Acas and his household legal expenses insurer, he said, and as a self-described “spanner man rather than a lawyer” had claimed himself to have been dismissed.  Sadly, Mr Blakemore had claimed actual, not constructive dismissal.   There could have been a more than decent argument for the latter – it must be very damaging to the old trust and confidence thing to receive a letter telling you effectively out of the blue not only that you have resigned, but also that your resignation has been accepted and your employment is therefore at an end.  The employer appealed, bemused.

In the EAT the ever-reliable Judge Peter Clarke gave short shrift to the Tribunal’s judgment. On the Claimant’s own case he had been dismissed on 6 November 2012.  He was not then permitted to drop his current claims and bring a whole new set of proceedings on the totally inconsistent basis that his employment was actually continuing. The EAT also noted that his now working on a self-employed basis was also clearly inconsistent with his remaining employed by Mr Clutch. The EAT therefore set aside the Tribunal’s declaration that Mr Blakemore remained an employee of Mr Clutch Auto Centres.

This case therefore reiterates that an Employment Tribunal should not seek to determine issues which are not an issue between the parties (whether Mr Blakemore was still employed), but the EAT also went further than this and said that a Tribunal should not even offer an opinion on an issue which has not been raised by the parties, “particularly where, in my judgement”, said HH Judge Clarke rather tartly, “that opinion is wrong”.