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Education Update - HR Focus

Published: 4th June 2009

Benveniste v Kingston University EAT - confusion of consequences of wrongful dismissal and unfair dismissal - EAT 18/05/2009
This case was heard in August 2008 but the decision is dated 18 May 2009.

Dr Benveniste was a mathematics lecturer employed by Kingston University. She was summarily dismissed for misconduct in 2004 and a series of court and tribunal proceedings followed. This case is (probably) the last in the series.

The case resulted from bad drafting of the dismissal letter sent by the Vice Chancellor of the University to Dr Benveniste. It said:

"I have concluded... that you continue to refuse to comply with reasonable management instructions and I have no alternative but to dismiss you with effect from today's date, 13 August 2004... as you are entitled to six months notice, you will be paid six months notice in lieu of notice and you will no longer be required to work for the University. Your last day of service will be today, 13 August 2004."

Dr Benveniste recognised the problem inherent in this wording. The letter dismissed her with immediate effect but at the same time it said she was entitled to six months notice and would be paid accordingly. If she was entitled, as the letter said, to six months notice, then clearly the University was in breach of contract by dismissing her without notice. She therefore argued that, by saying she was entitled to notice, the University had waived its right to rely on her alleged gross misconduct as a defence to her claim, and that is followed that she should also be compensated for loss of pension rights.

An employment tribunal dismissed this argument. It found that Dr Benveniste's conduct disclosed a deliberate intention not to be bound by the terms of her employment contract and that the University was entitled to dismiss her without notice. Whatever the letter said, she was not entitled to pay in lieu of notice, she had received more than her legal entitlement and no further amounts were due.

Dr Benveniste appealed to the EAT.

Dr Benveniste lost.

The EAT pointed out that her case rested on confusing wrongful dismissal (breach of contract) on the one hand and unfair dismissal on the other. Here the claim was a breach of contract claim. It was clear that the University was not in breach of contract. Dr Benveniste had acted in breach of contract and the University had been entitled to dismiss her without giving her the notice to which she would otherwise have been entitled under her contract.

That is what the University had done by the letter noted above. Even if the facts on which the University relied in dismissing Dr Benveniste had not been fully known to it at the time of the dismissal, she had acted in breach of contract and it had been entitled to dismiss her. The original tribunal had been correct to conclude that she was not entitled to pay in lieu of notice and no further amounts were due. The fact that the University had in fact made a payment to her made no difference to this position.