A party who has properly given notice of termination has no right to withdraw it save in special circumstances.

Capital entered into discussion with its employee, Ms Willoughby about the possibility of her switching to self-employment to avoid her redundancy. The exact terms of her self-employment had not been discussed and Ms Willoughby made it clear that she would need further details in writing in order to reach a decision. On 22 December just before the annual shutdown Capital provided Ms Willoughby with the details in the form of a written agreement on the assumption that she had already agreed these terms. The letter indicated she had agreed to move and terminated her employment contract with effect from 31 December.

Ms Willoughby responded that she would not be accepting the agreement, but she accepted she had been dismissed. Capital sought to retrieve the situation when the workplace reopened on 5 January indicating that there had been a misunderstanding. These overtures were rejected and she brought a claim for unfair and wrongful dismissal.

Capital resisted her claims. The Tribunal found that their letter of 22 December had terminated her employment but there were special circumstances namely there had been a genuine misunderstanding between the parties as to what had been agreed and Capital had sought to retract its position within a reasonable period of time as soon as it could after the shutdown. Ms Willoughby appealed this decision and the EAT agreed. The dismissal had been effective.

The fact that Capital was mistaken in issuing a letter of dismissal was not a special circumstance. Nor had the change of heart by 5 January been timely. The intervention of the shutdown was not a valid excuse. “Special circumstances” would be where words of termination were spoken irrationally or in anger, such as heat of the moment terminations or resignations.

Key point: An employer who uses unambiguous words of dismissal will dismiss an employee and terminate the contract of employment whatever their intention.