In UK employment law, the question of whether an employer can fairly dismiss an employee based on a mistaken belief that they resigned is both complex and case-sensitive. This issue was at the heart of Impact Recruitment Services Ltd v Korpysa, where the Employment Appeal Tribunal (EAT) examined whether a genuine but mistaken belief could amount to a fair dismissal under the "some other substantial reason" (SOSR) ground in the Employment Rights Act 1996 (ERA).
Understanding the case: Impact Recruitment Services Ltd v Korpysa
Ms. Korpysa was employed by Impact Recruitment Services when her manager misinterpreted her request for holiday pay and a copy of her contract as a resignation. Acting on this belief, the employer issued her final payslip and a P45. However, Ms. Korpysa maintained she had not resigned - she was merely seeking information while exploring other job opportunities.
The Employment Tribunal initially found her dismissal unfair, ruling there had been no clear and unequivocal resignation.
The appeal and the EAT’s decision
Impact Recruitment Services appealed, arguing that even if the belief was mistaken, it was genuinely held and could amount to SOSR—a potentially fair reason for dismissal under the ERA. The EAT agreed that a genuine, mistaken belief might fall under SOSR if the employer acted reasonably in treating that belief as the reason for dismissal. However, it stressed that fairness depends on the specific facts of the case and the reasonableness of the employer’s response.
The legal framework: fair reasons for dismissal
Under the Employment Rights Act 1996, fair reasons for dismissal include:
Conduct
Capability
Redundancy
Illegality
Some Other Substantial Reason (SOSR)
Even where SOSR is cited, an employer must still show that it acted reasonably in all the circumstances when making the decision to dismiss.
Criteria for SOSR-based dismissals
To justify dismissal under SOSR, an employer must:
Establish that SOSR was the principal reason for dismissal.
Demonstrate that the dismissal decision was reasonable in the circumstances.
In Korpysa, the EAT emphasised that employers should verify the facts carefully - especially when an alleged resignation is ambiguous or disputed.
Practical implications for employers
The case highlights key steps employers should take before dismissing an employee based on suspected resignation:
Clarify intentions: If an employee’s actions or words suggest resignation but are unclear, seek direct confirmation in writing.
Document everything: Keep detailed records of communications, decisions, and discussions.
Follow fair procedures: Provide the employee a chance to respond, investigate thoroughly, and apply the Acas Code of Practice.
Consider alternatives: Dismissal should be a last resort. Mediation or further discussion may resolve misunderstandings.
The importance of reasonableness
Ultimately, fairness hinges on reasonableness. Was it reasonable for the employer to believe the employee resigned? Did they take proportionate steps to confirm it? The EAT in Korpysa sent the case back to the Tribunal to determine whether the employer’s conduct met the legal threshold of reasonableness.
Factors that can influence this assessment include:
Company size and resources: Larger companies may be held to higher standards in investigation and documentation.
Nature of the role: The employment context and employee’s responsibilities can affect how resignation signals are interpreted.
Past practice: Consistency in treatment of similar cases is crucial to avoid claims of unfairness.
Mistakes can be costly - but not always unfair
Impact Recruitment Services Ltd v Korpysa shows that a mistaken belief of resignation can potentially justify dismissal - but only if the employer’s actions are fair, reasonable, and well-documented. Employers should tread carefully, ensuring they communicate clearly and follow proper procedures to avoid liability.
Key takeaway: Never assume a resignation. Always confirm, clarify, and record. In matters of dismissal, reasonableness is not optional - it’s the law.
This article was created with insights from Lex HR - your always-on HR legal assistant. Lex HR helps HR professionals navigate complex employment law with confidence, providing real-time, reliable advice tailored to your needs. Try it free today and see how much easier compliance can be.
