When is a resignation not counted as a resignation?
As all HR professionals know, one answer is: when it’s a constructive dismissal – that is, when a serious breach of contract by the employer caused it. Another answer, which might be given by an employee, is: ‘When I didn’t mean it. I just said it in the heat of the moment.’
However, a recent Employment Appeal Tribunal (EAT) decision, Proctor v Glycosynth Limited (EAT/0811/04), illustrates that it is not whether the employee meant it or not that counts.
B, the owner of a small chemical company, had disclosed to all of his staff the details of a pay rise given to P, a manager. P was angry about this and asked for a meeting. An agitated discussion took place in which B told P that he was not a good manager. In response, P said that he obviously would not be able to continue working after hearing that. P then returned to his desk, followed by B, who shouted: “I thought you were leaving,” and then said: “No, go now, I don’t want you here, just get out and leave.”
In evidence, P said that he had not said that he was resigning. But the tribunal and, in its turn, the EAT, found that P’s words would indicate to a reasonable employer or bystander that he was going to resign. This conclusion could have been devastating to P’s claim for unfair dismissal, since the tribunal went on to find that there was no constructive dismissal in this case. There was no breach by B of the implied duty of trust and confidence – just a slur on P’s ability in a heated exchange that could have been retracted when P and B calmed down.
Fortunately for P, the tribunal and the EAT decided that his words did not indicate an intention to resign on the spot. P in fact returned to work in the afternoon to hand in a letter giving three months’ contractual notice, but B again told him that he could “just leave”. This, the EAT found, was a dismissal by B right at the start of P’s notice period and, in the circumstances, that dismissal was unfair.
P was lucky. Generally speaking, where an employee uses unambiguous words of resignation and the employer understands them as such, the proper conclusion is that the employee has in truth resigned. However, where, as in the case of P, the employee does not actually walk out, there is a real risk for the employer who insists they go immediately.
First, as here, the tribunal might interpret the employee’s words to mean they were going to resign on notice, so that the employer’s insistence on them leaving becomes a dismissal during the notice. Second, when said in the heat of the moment, the employer should allow time for the employee to cool down and re-consider.
The employer that acts too hastily risks a finding of automatically unfair dismissal, with enhanced compensation being awarded due to non-compliance with the statutory dismissal procedure. If the employee does walk out as threatened, they will have to present a written grievance to the employer to be able to bring a tribunal claim. Dealing with this will enable the employer to assess the nature of the legal threat and, perhaps, to redress the grievance and retrieve the situation.
Should I stay or should I go?
- Where an employee resigns in circumstances when emotions are running high:
- Do not assume that the resignation was intended to have immediate effect
- Ensure the employee is asked to discuss the matter in a calmer atmosphere
- Ensure the other people who are involved in the matter (manager, colleagues, witnesses) make an immediate note of their recollection of the events, including who said what
- If the employee subsequently provides a written account of why they resigned, treat this as the first step under the statutory grievance procedure.
Director of employment and legal affairs, EEF