Get Out! - Employers Beware of Ambiguity
18th September 2008
During an argument, employees and employers say one thing but either party usually leave with a different view of what was actually said. This situation was highlighted in a recent case where an employee recalled his employer saying:
"Get out, leave and don't come back".
The employer on the other hand recalled saying:
"Get out, this argument has got nothing to do with you"
The employee did not return to work and the employer assumed he had resigned. When the employer contacted his wife (for the return of his fuel card), the employee claimed unfair dismissal.
The Employment Tribunal did not decide what was actually said and chose to look at the circumstances surrounding the argument and conclude that the employee had been unfairly dismissed.
On appeal by the employer, the Employment Appeal Tribunal held that a Tribunal is under a duty to make a finding of what was actually said and stated that the following approach should be adopted:
- the intention of the speaker of the relevant words is not the relevant test;
- if the words are unambiguous then they must be given effect to by the Tribunal;
- if the words are ambiguous, then the Employment Tribunal must consider all the surrounding circumstances and decide, on the basis of an objective test, what the words would have meant to a reasonable listener.
As both statements were unambiguous, the Employment Tribunal should have found upon what was said and proceed on that basis.
For more information, please contact:
Glasgow: Paul Brown or Michael McLaughlin - tel: 0141 228 8000
Edinburgh: Alan Strain - tel: 0131 226 5541
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.