Claimant/Appellant: Korpysa 

Respondent: Impact Recruitment Services Ltd

EAT remitted a case relating to dismissal/resignation confusion noting that it could be some other substantial reason as a fair reason where the employer genuinely believes that the employee has resigned.

The claimant was placed with Howdens, by the respondent, as a warehouse operative. The majority of the agency staff were told that Howdens would be shutting down as a result of the pandemic and lockdown in March 2020. The claimant was ‘laid off’ by Howdens.

The key communication was a telephone call between the claimant and the on-site account manager for the respondent. They both spoke in Polish on the call so there was no issue of a misunderstanding due to language problems. The respondent’s evidence was that the claimant asked for all her holiday pay and requested a P45. She said she had been offered a new job and was starting at the beginning of April.  

The claimant, however, stated that whilst she asked for the holiday pay, she did not ask for the P45. She wanted to check the contract for her notice period.  The claimant emailed another contract manager asking for the reason for her immediate dismissal and why she was no longer working for Howdens. The other manager rang to say that she would be paid four weeks’ notice despite her leaving her employment and her contract was terminated on 1st April 2020.

The claim was one of unfair dismissal. It was interesting that at first instance the lay members gave a majority decision with the employment judge in the minority. The Judge found that the claimant did not fully understand her contract was with Impact and not with Howdens. She considered that when not offered any further shifts that she had been dismissed. However, she was not dismissed at that point and she remained employed by the respondent. The Judge concluded that she had resigned from her employment. The lay members, however, found that the request for the contract and holiday pay was not a clear and unequivocal resignation. The respondent was wrong to think that the claimant had resigned. They found she was dismissed when she was sent the P45 on 8th April 2020 and that was the effective date of termination. There was no potentially fair reason, and no procedure properly used. The respondent appealed this decision.

The EAT held that where a tribunal finds that an employer has engaged in conduct amounting to a dismissal but that is upon the mistaken belief that the employee has resigned – it is that belief which is the reason for dismissal. That reason may constitute another ‘substantial reason’ as permitted within the legislation. It would be for the Tribunal to determine whether the employer has shown that it does. The EAT provided guidance stating that the Tribunal should consider:

• Whether the person who decided upon the conduct that amounted to a dismissal genuinely believed that they had resigned;
• Whether they had taken the steps that any reasonable employer would take to ascertain whether the employer had in fact resigned, prior to acting upon it.

Accordingly, the case was remitted back to the Tribunal on these points.

The distinction between resignation and dismissal can lead to some messy consequences. This is one of these cases and it is interesting that the lay members came to the decision rather than the legally qualified Judge. However, the EAT has provided some useful guidance on when a genuine belief in a resignation may be a fair reason for a dismissal under some other substantial reason.

You can read the case in full here:
https://assets.publishing.service.gov.uk/media/67bc92e5d157fd4b79adddad/Impact_Recruitment_Services_Ltd_v_Ms_I_Korpysa__2025__EAT_22.pdf