When an employer dismisses an employee, they must establish a fair reason for dismissal under section 98 of the Employment Rights Act 1996. One such reason is “some other substantial reason” (SOSR).
The EAT has ruled that an employer’s genuine but mistaken belief that an employee had resigned can, in certain circumstances, amount to an SOSR reason justifying dismissal.
In this case, Ms Korpysa worked for an agency that placed her with an end-user. When the end-user’s business closed during the COVID-19 lockdown in March 2020, they no longer needed her services. The agency claimed that Ms Korpysa then asked for holiday pay and a P45 because she had secured a new job. On that basis, they processed what they understood to be her resignation. Ms Korpysa later brought a claim for unfair dismissal, maintaining that she had never actually resigned.
The employment tribunal, by majority, ruled in her favour. It found that she had only requested an advance on holiday pay and a copy of her contract, which did not amount to a clear resignation. The tribunal held that the employer’s belief that she had resigned, while mistaken, was not a potentially fair reason for dismissal. The dismissal was also deemed both procedurally and substantively unfair. The agency appealed.
Applying the Court of Appeal’s decision in Ely v YKK Fasteners (UK) Ltd [1994] ICR 164, the EAT overturned the tribunal’s decision. It held that a mistaken belief in resignation could qualify as an SOSR reason, provided it was not completely irrational or baseless. The tribunal had been wrong to assume that such a belief could never be an SOSR reason or, if it had considered the question, had failed to explain its reasoning.
The EAT also found that the tribunal had applied the unfair dismissal test incorrectly. Under section 98(4), the key issue was whether the employer’s belief in the resignation was reasonable and whether it had taken appropriate steps to confirm the resignation before acting on it. The tribunal should have assessed whether the employer’s actions were fair rather than assuming the dismissal was automatically unfair.
As a result, the tribunal’s decision was overturned, and the case was sent back for reconsideration on whether the employer’s reason for dismissal fell under SOSR and, if so, whether the dismissal was ultimately fair.Case
Impact Recruitment Services Ltd v Ms I Korpysa: [2025] EAT 22
