21 November 2013

Ambiguous resignations

Dealing with resignation by employees is a natural and unavoidable part of being an employer. Issues can however arise in respect of the form that such resignations can take, specifically the ambiguous language that some employees tend to use when quitting employment.

A question recently put before the Employment Appeals Tribunal ("EAT") in the case of Secretary of State for Justice v Hibbert was that when an employee states in their resignation "I have no alternative but to resign my position", were these words ambiguous in their construction and meaning?

The EAT found that such words were unambiguous. The point in issue for this case was whether a claim for unfair dismissal had been lodged out of time. This turned on the effect of the letter of resignation tendered by the employee, Mrs Hibbert.

Following issues at work Mrs Hibbert wrote to her employer stating that "I am of the view that there has been a fundamental breach of my employment contract by my employer and have no alternative but to resign my position".
This letter was dated 29 June 2012. The employer offered to give Mrs Hibbert further time to consider her resignation, however she refused to do so. The employer then wrote to Mrs Hibbert accepting her resignation, though stipulating that she provide four weeks' notice, confirming that her last date of employment would be 27 July 2012.

The time point in issue was that if Mrs Hibbert's effective date of termination ("EDT") was on 29 June 2012 the claim would be out of time and the tribunal would not have jurisdiction to hear it; if the EDT was found to be 27 July 2012, then her claim would be in time and could proceed.

The Judge in the original Employment Tribunal ("ET") hearing considered that the 29 June 2012 letter was clear as to Mrs Hibbert wishing to resign, but not in relation to the date of termination of the contract, which was still to be decided. Consequently the claim was in time.

The EAT however disagreed, applying the principles espoused in the case of Southern v Franks Charlesly & Co, in which the Court of Appeal considered that words to the effect of "I am resigning" were unambiguous. In Mrs Hibbert's case the EAT considered also that the words used by Mrs Hibbert were clear and unambiguous.

There was then no issue as to a decision being taken rashly by Mrs Hibbert in resigning, this stood from the date it was communicated in her original letter. The fact that her employer then required her to provide four weeks' notice and stated that her last working day would be 27 July 2012 and that she would be paid for that period had no legal effect.

The fact that was found to be evident then following the above reasoning was that Mrs Hibbert resigned with effect from 29 June 2012, which unfortunately for Mrs Hibbert meant that her claim for constructive unfair dismissal had been brought out of time.

Conclusion
Two clear points come out of the above case. First from an employer perspective it is a good idea where possible to offer further time for a disgruntled employee to reconsider their resignation. However tabling a condition that such resignation will be accepted only if the employee works their notice does not change the effective date of termination.

From an employee perspective, the old chestnut of always ensuring your claim is brought in time comes back into play; it is always wise where there is confusion to take the earliest possible time limit for submission of a claim as the date by which such a claim should be lodged.