Tuesday, October 15, 2013

When You Say You Are Resigning - You Mean It!

The Employment Appeal Tribunal has held that an employee of HMP Wakefield resigned with immediate effect when she submitted a resignation letter, with the result that an Employment Tribunal Claim which was lodged within 3 months of the end of her "notice period" was too late and her Claim could not proceed.

Mrs Hibbert was employed as a Works Escort at the Prison. She raised a grievance and appealed when she was unhappy at the outcome. Following this she was invited to a capability meeting and this was due to take place on 26th June 2012. At her request this was put back to 2nd July. On 27th June the grievance appeal was rejected. Mrs Hibbert hand delivered a letter drafted by her Solicitors. This included the words "...I have no alternative but to resign my position."

Her Manager wrote back suggesting that she thought this decision might have been influenced by the impending hearing and allowing 5 days for Mrs Hibbert to be clear that this was what she intended to do. Mrs Hibbert's Solicitors wrote on her behalf on 9th July making clear that the decision had not been made because of the hearing (or at least not solely because of the hearing) and setting out some matters their client wanted addressed so that she could consider her position.

The Respondent replied to Mrs Hibbert on 11th July that as she had not taken advantage of an offer to discuss her issues her resignation was accepted and that as the Respondent was entitled to 4 weeks' notice her employment would end on 27th July (i.e. 4 weeks from the date of the resignation letter.)

The Respondent alleged that the Unfair Dismissal Claim was lodged out of time as it was lodged after 28th September 2012. The Employment Tribunal found that the Claim was in time as it was lodged within 3 months of 27th July 2012. The original letter was simply stating an intention to resign and not setting a date and the subsequent correspondence set the date.

The EAT disagreed. It said that the natural meaning, regardless of what the Claimant intended, of the resignation letter was that the Claimant was resigning with immediate effect. Once she had done so then as this was not a "heat of the moment" situation (where a resignation or a dismissal may not have the usual legal effect if the Tribunal finds that the person did not really mean to resign or sack someone) then the subsequent correspondence could not affect the date of termination. The Claim was therefore out of time.

This is yet another salutory reminder of how strictly Employment Tribunal time limits are enforced and that "a miss is as good as a mile" in an Unfair Dismisal case. The lessons are to make sure that any resignation letter is completely unambiguous as to when it takes effect and that when calculating the time limits for lodging the papers ensure that you do so based on the earliest possible date for these to expire. Interestingly the Solicitors were no longer acting for Mrs Hibbert by the time of the EAT - is she about to turn her ire on them,one wonders?