An employee of an agency was set to work for a client, the name of which was contained in the employee’s contract of employment. The client no longer needed the services of the employee, who was then offered either two weeks notice plus redundancy pay, or two weeks notice and a contract of work for a different client whom the agency would seek out. He chose the two weeks plus redundancy pay.

The Tribunal found that this amounted to termination of employment by consent of the employee and so a claim for Unfair Dismissal could not be upheld. It emerged that the question to be asked was whether the employment contract had been brought to an end, and not whether the employment relationship had been brought to an end, which would have been the arising question had the issue been over entitlement to redundancy pay.

The Employment Tribunal so found that the contract of employment stipulated that the employee work for a certain client, which the Appeal judge noted was correct. This contract then came to an end, no argument of frustration was ever brought forth, it was simply that the agency could not perform it. It was terminated by the agency, and the client was offered 2 weeks notice in both options. There had been an argument that the terms “redundancy” and “notice” were vague, loose terms and were not intended to have their formal meaning. Furthermore, it was argued that when the claimant exercised his right to appeal his redundancy, it was ‘meaningless’ as he had already opted for redundancy and accepted his redundancy pay. These arguments however were rejected as being ‘unrealistic’.

The original decision by the Employment Tribunal that this did not amount to Unfair Dismissal on the basis of consent of termination by the employee was substituted by the Employment Appeal Tribunal. This due to their findings that there had been no application of the statutory test in s95 of the Employment Rights Act, among others. The appeal was allowed and it was found that there had been a dismissal. http://bit.ly/152Ts9J