Ms D McPhee v The Red Squirrel Children’s Nursery Ltd — 2021

Ms McPhee worked for the nursery from 23 November 2018, initially as a cleaner and later as an administrative assistant. After maternity leave and a period of furlough during the Covid-19 downturn, the respondent sent redundancy correspondence in March 2021. The tribunal found that by 9 March 2021 she had received clear notice that the respondent intended her employment to end on 29 March 2021, and it accepted that she later appealed seeking reinstatement.

The tribunal held that the redundancy notice was not withdrawn by agreement before it expired. It accepted, however, that the claimant's appeal engaged an implied consent to the appeal process, and that the respondent's eventual appeal outcome on 24 June 2021 reinstated her with immediate effect. The tribunal placed weight on the fact that the claimant continued to receive furlough payments without protest, did not withdraw the appeal, and later received statutory maternity pay, which was inconsistent with the position that the dismissal had remained operative.

Applying section 95 of the Employment Rights Act 1996 and the authorities it cited on the effect of dismissal notices and successful appeals, the tribunal concluded that the earlier dismissal was rescinded or extinguished by the later events. It therefore held that Ms McPhee was not dismissed within the meaning of section 95(1) and dismissed the unfair dismissal complaint. The tribunal also noted that there was no basis on the facts for a constructive dismissal finding under section 95(1)(c).