When is a resignation a resignation?

13 August 2014

Maxine Orr, Employment Partner for Worthingtons comments on issues of termination and resignation

Employees who wish to bring a claim for unfair dismissal in the Employment Tribunal must normally do so within three months of the date of termination. Therefore the issue of when an employee’s contract of employment comes to an end is often crucial as to whether or not the Tribunal has jurisdiction to hear the complaint.

In a recent case the Employment Appeals Tribunal considered what was the effective date of termination.  Ms Hibbert was employed with HMP Wakefield and she had various issues in her employment which she raised by way of a grievance in 2012. She was subsequently invited to a capability meeting which was rescheduled at her request and appealed against her grievance. On 11 June she went off sick and apart from a period of three days did not return to work thereafter.

Ms Hibbert hand delivered a letter of resignation to her employer on 29 June. The letter was read by the employer on that day and the letter alleged among other things that her grievance had not been properly dealt with and that her doctor had advised her against attending any further meetings with the employer and it concluded that there was a fundamental breach of her contract of employment and that she had no alternative but to resign.

On 3 July the employer replied to express concern that the resignation had been influenced by the prospect of the capability meeting and advised that as a matter of good practice, Ms Hibbert have five days considering her decision. She was also invited to a capability meeting on 10 July. Her solicitors responded on 9 July and confirmed that the decision to resign was based on numerous factors, including the timing of the capability meeting, but that the final straw was the outcome of the grievance appeal. Ms Hibbert was of the view that there had been a significant breach of trust and confidence entitling her to resign. The letter explained that she would not dismiss the possibility of a meeting provided the employer responded to further matters raised in the letter.

The employer responded on 11 July stating that due to her failure to accept an offer of a meeting the employer had no alternative but to accept her resignation as tendered in the letter of 29 June. It further noted that she was required to give four weeks’ notice and stated that she would remain on full pay and that her last working day would be 27 July.

She issued proceedings for constructive dismissal based on a termination date of 27 July, however the employer argued that the claim was out of time as the dismissal date had been 29 June.

The Tribunal found in favour of Ms Hibbert on the time limit. It considered that the letter of 29 June was unambiguous as to resignation, but was ambiguous as to the date on which the termination would take effect. It stated that the letter had not begun and ended the termination process but had led to further correspondence. The employer appealed and the Appeal Tribunal stated that Ms Hibbert’s words of resignation were unambiguous and had the same meaning and effect as if she had stated “I am resigning now”. The Tribunal stated that there were no “special circumstances” and there was no evidence that Ms Hibbert had taken the decision in the heat of the moment or that she had been pressured into making a decision. Indeed, the letter of 29 June had been drafted by her solicitors or at the very least on the basis of legal advice.

The Appeal Tribunal stated that her resignation was an acceptance of her employer’s repudiatory breach of the contract and it was not open to the employer to accept or refuse her tendered resignation. The offer made to Ms Hibbert in the letter of 3 July was merely a “cooling off period” and that the requirement for her to give notice rendering her last day of work as 27 July had no legal effect.

This case serves a reminder that where an employee expresses an unambiguous intention to resign immediately, a period of notice stipulated in post-resignation correspondence does not act to vary the date of termination. The essential question is whether the immediate intention to resign was expressed in clear terms and there are no special circumstances.

Employers should take legal advice in dealing with issues of termination and resignation to avoid lengthy and expensive litigation.

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