In a recent appeal case (Sandhu v Jan De Rijk Transport Ltd 2007) it was established that the facts of termination of employment suggested Dismissal over Resignation, which of course, is an important factor in any Employment Tribunal situation. Resignations are not actionable but dismissals are.
In this case Jan De Rijk are a large transport company employing approximately 130 people and a further 300 drivers.
Mr Sandhu, an Operations Manager, was summoned to a meeting with the M.D. without prior knowledge of what it was about. There had been discussion internally between other senior staff about alleged misconduct by Mr Sandhu.
The meeting opened with the M.D. saying
“Your contract, we are going to finish it”.
Although Mr Sandhu then agreed terms to end his employment the Court of Appeal came to the conclusion that he was merely trying to:
“Salvage what he could from the inevitable fact that he was going to be dismissed”
and
“It was the very antithesis of free unpressured negotiation”.
Employers should take note of the case since it crops up periodically. There are employees who in reality deserve of a disciplinary process but for reasons perhaps because the employer doesn’t want to go down the disciplinary route or because the employee doesn’t want a disciplinary record, then the idea of a resignation rather than a dismissal appears attractive. As this case points out, it can be a dangerous route to choose and may backfire into an unfair constructive dismissal case.
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