Confusing Wrongful Dismissal and Unfair Dismissal

In Benveniste v Kingston University [2009] UKEAT 0176/08/1805 the Employment Appeal Tribunal (EAT) held that Dr Benveniste's case rested on confusing wrongful dismissal (breach of contract) on the one hand and unfair dismissal on the other. Her claim was for breach of contract and it was obvious that the University was not in breach of contract. However, Dr Benveniste had acted in breach of contract herself and the University was therefore entitled to dismiss her without notice.

Dr Benveniste, a lecturer at Kingston University, was summarily dismissed for misconduct in 2004. She brought a claim due to the bad drafting of the dismissal letter sent to her by the University's Vice Chancellor. The letter stated the following: "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, 13th 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, 13th August." Although Dr Benveniste was dismissed with immediate effect, the letter stated that she was entitled to six months' notice and would be paid in lieu. Dr Benveniste's argument was that by stating that she was entitled to notice, the University had waived its right to rely on her supposed gross misconduct as a defence to her claim and that she should therefore also be compensated for the loss of her pension rights. The Employment Tribunal dismissed this argument and Dr Benveniste appealed to the EAT.

The EAT dismissed the appeal and held that Dr Benveniste had acted in breach of contract and the University was therefore entitled to dismiss her without notice. The payment made to her by the University made no difference to this position.