The Claimant was formerly employed by Impact Recruitment Services Limited (Impact), an agency, which supplied her services to Howden Joinery Limited (Howdens). She considered that when she was laid off by Howdens on 24 March 2020 (when the pandemic hit) without being offered any further shifts, she had been dismissed, and so she began to look for another job. Impact alleged that she had resigned: she had asked them to pay her her holiday pay, provide a copy of her contract and send her her P45 as she had found another job elsewhere. The Claimant denied having resigned and claimed that she had been unfairly dismissed. The majority at the ET held that requesting a copy of her contract and an advance of holiday pay did not amount to a clear and unequivocal resignation so Impact was wrong to think that the Claimant had resigned. The ET concluded that the reason for dismissal was a mistaken belief that she had resigned and found that that was not a potentially fair reason and that the dismissal was both procedurally and substantively unfair. The Respondent appealed.

The EAT allowed the appeal. Where an ET finds that the employer has engaged in conduct amounting to a dismissal because the person who decided upon that conduct genuinely, but mistakenly, believed that the employee had resigned, that belief is the reason for dismissal. In such a case that reason may constitute a substantial reason of a kind such as to justify the dismissal, falling within section 98(1)(b) Employment Rights Act 1996, and so the ET should consider whether the employer has shown that it does. If so, the ET should consider whether the dismissal is fair or unfair applying section 98(4) of the 1996 Act. That may need to include a consideration: of whether the person who decided upon the conduct that amounted to a dismissal, at the time reasonably (though mistakenly) believed that the employee had resigned; and of whether they had taken the steps that any reasonable employer would take to ascertain whether the employee had in fact resigned, prior to acting upon that belief.