Friday, 18 October 2013

Dismissals / Ambiguous Resignations

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary
When an employee states that "I have no alternative but to resign my position", are these words ambiguous?

No, says the EAT in Secretary of State for Justice v Hibbert.

The issue in this case was whether a claim for dismissal was lodged out of time.  This turned on the effect of the letter of resignation from the Claimant.
After problems with work the Claimant wrote to her employer saying: "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".
The letter was dated 29 June 2012. The employer offered to give the employee time to reconsider.  She did not.  The employer then wrote accepting the employee's resignation, requiring her to provide 4 weeks notice, and indicating that her last day of work would be 27 July 2012.
If the effective date of termination was on 29 June 2012 the claim was out of time. If it were 27 July 2012, it was in time. 

The employment tribunal Judge considered that the 29 June 2012 letter was unambiguous as to resignation but not as to the date of termination of the contract, which was still to be settled.  The claim was therefore in time.
The EAT disagreed.  In Southern v Franks Charlesly & Co[1981] the Court of Appeal considered words such as "I am resigning" were unambiguous.  In the present case the EAT considered that the words used by the Ms Hibbert were also unambiguous.  There was no question of a decision being taken in the heat of the moment and the letter was written on legal advice.  The fact that the employer required her to give 4 weeks notice and stated that her last working day would be 27 July 2012 and that she was paid for that period had no legal effect.  As a matter of fact she resigned on 29 June 2012.  The unfair dismissal claim was lodged out of time. 

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