Mr M McDonagh v T Fowles Haulage Limited — 2022

Mr McDonagh worked as a driver for T Fowles Haulage Limited from July 2015. The tribunal noted written warnings issued on 16 July 2019 and 11 December 2019 for taking leave without permission. It also recorded that the original tribunal claim was rejected because of a mistake in the Acas certificate number, but the refiled claim was allowed to proceed late because the mistake had been made in good faith and the claim was promptly resubmitted once the error was identified.

The central issue was what happened on 9 March 2020, when Mr McDonagh did not attend work and spoke to Mr Fowles three times by telephone. The tribunal accepted that in the first call Mr Fowles used words of dismissal, saying the company would have to let Mr McDonagh go, and that Mr McDonagh reasonably understood that he had been dismissed. However, in the later calls Mr McDonagh pleaded for his job, explained why he had not called earlier, and asked to provide a written explanation at the office. Mr Fowles said he would need to discuss the matter with Ms McIntyre and get back to him, and the tribunal found that both men agreed further steps would be taken.

Applying the law on withdrawal of dismissal, including Martin v Yeomen Aggregates Ltd, the tribunal concluded that Mr Fowles was entitled to take back the words of dismissal, and that in any event the words were withdrawn in the heat of the moment so that, taken as a whole, there was no dismissal. The tribunal found that the company treated Mr McDonagh as continuing to be employed, including by placing him on furlough from 1 April 2020 to 30 September 2021 and paying him during that period. It therefore held that Mr McDonagh remained an employee of the company.

Because there was no dismissal on 9 March 2020, the unfair dismissal claim and the breach of contract claim in respect of notice pay both failed and were dismissed. The tribunal also noted that Mr McDonagh was entitled to the furlough pay he received during the furlough period.