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Apr 23

Posted by
Charlotte McArdle

Unfair Dismissal: Case law example

Resignation does not need to be in writing (although it should be if that is required under the contract of employment), it can be given orally or in some cases via conduct. When a resignation is clear and unambiguous there is no obligation on the employer to double check the employee's intentions. However, if the employees resignation is unclear and an employer proceeds in treating the employment as having ended then there may be trouble ahead.

In Cope v Razzle Dazzle Costumes Limited the claimant was a factory worker. She fell out with a colleague who subsequently resigned, accusing the claimant of bullying. When the claimant was made aware of the allegations she requested a meeting with her employers, Mr and Mrs Parker, and said she would resign if things were not sorted out properly. The following day the claimant made two attempts to speak to Mrs Parker who was unavailable on both occasions. On being told this for the second time the claimant said "I'm done", left her factory keys on the counter top and left the building.

The employee whom the claimant had said this to subsequently advised Mr and Mrs Parker that the claimant had resigned. No attempt was made to clarify the situation, despite the claimant texting Mrs Parker later that day to indicate she had attempted to speak to her but couldn't stay at the workplace any longer. The following day she handed in a two week sick note, and a week after that she requested a meeting with the Parkers which took place. It was at that meeting that the claimant was informed that her employers considered her to have resigned and they did not agree to her returning. By this time the employers had also re-employed the employee who had made the bullying allegations.

The claimant was successful in claims for both unfair and wrongful dismissal. The tribunal was of the view that no reasonable employer would have concluded that the claimant had unambiguously resigned, and her subsequent behaviour, in particular the submission of a sick note, was not consistent with a resignation. The tribunal took the view that the employers chose to treat the claimant's actions as a resignation because dealing with a dispute between two employees was disruptive to the business.

It is easy to see why the tribunal came to the conclusion that it did. While announcing she was "done" and handing in her keys may, in some circumstances, reasonably be seen as a resignation, in this case the claimant was due to have 3 days off and she had in the past handed in her keys when off on holiday. The evidence also suggested that the claimant had been in a highly anxious state when she walked out and the act of obtaining a sick note is clearly not consistent with resignation. Treating it as such, to avoid dealing with the allegations of bullying, may have seemed like the easier option at the time but the award of nearly £7,500 in compensation together with the management time and any legal fees involved in defending the tribunal claim has likely given the employers a different perspective on the matter.

The advice for employers is if in doubt check it out. If it is unclear what has happened, or if words may have been said in haste then ask the employee to confirm what their intentions were/are. If words were said in the heat of the moment then consider giving the employee a short period of time to cool off and reconsider. If the contract requires written notice and this has not been given then ask for the resignation to be put in writing. This will avoid any subsequent dispute and a possible Employment Tribunal claim.

Posted in Dismissals, Employment Contract


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