If an employee resigns, when does the resignation take effect? Normally, the letter of resignation will make this clear, for example by giving a month’s notice, but what happens when the letter of resignation is silent on this?
This was the question considered by the Employment Appeal Tribunal (EAT) in the recent case of Secretary of State for Justice v Hibbert .
In this case, Mrs Hibbert worked as a Works Escort at HMP Wakefield. She had been having problems at work and went on sick leave in June 2011, returning for 3 days and then going off sick again in February 2012. She also raised a grievance in February 2012 which was not upheld. She had appealed against this decision and that appeal was rejected. There was further correspondence between Mrs Hibbert and the Governor of the prison culminating in Mrs Hibbert being asked to attend a meeting on 2 July 2012 to consider whether she was capable of performing her current role and to discuss the possibility of her employment being terminated due to ill health.
On 29 June 2012 Mrs Hibbert hand delivered a letter to the Governor which was read by the Governor on that day. In that letter Mrs Hibbert complained about the way her grievance had been dealt with, and went on to say:
“In all the circumstances, for the matters set out and in relation to the entire history of this matter from the point that I went absent in February, I am of the view that there has been a fundamental breach of my employment contract by my employer and I have no alternative but to resign my position.”
The Governor replied to Mrs Hibbert suggesting a period of 5 days for her to review her decision and again inviting her to a capability hearing, now rescheduled for 10 July 2012. Mrs Hibbert’s solicitors responded to that letter confirming Mrs Hibbert’s decision to resign. The Governor responded to that letter stating, among other things, the following:
“You are required to provide 4 weeks’ notice therefore your last working day will be the 27th July 2012 your manager will calculate any outstanding leave and toil you have remaining, until this date this will be paid at the current rate you are receiving, he will also be in contact with you as part of the exit management policy.”
Mrs Hibbert remained off sick but was paid until 27 July 2012 as normal.
Mrs Hibbert then brought a claim for unfair constructive dismissal. Claims to the Employment Tribunal have to be received by the Tribunal within 3 months of the effective date of termination. The question in this case was when the effective date of termination was: if it was 29 June 2012 (the date of Mrs Hibbert’s letter stating “I have no alternative but to resign my position”) the claim was out of time; if it was 27 July 2012 (the date in the Governor’s letter) then it was in time.
At the Employment Tribunal, the Employment Judge found that the effective date of termination was 27 July 2012. He said that the letter from Mrs Hibbert of 29 June 2012 was unambiguous as to her intention to resign, but was ambiguous as to when that resignation was to take effect. The fact the Governor responded to make it clear that HMP Wakefield expected 4 weeks’ notice, and indeed paid her for that period, simply reinforced this.
HMP Wakefield appealed to the Employment Appeal Tribunal. They held that Mrs Hibbert’s letter of 29 June 2012 was a letter of immediate resignation, and as such, everything that took place afterwards was irrelevant to the effective date of termination. The Employment Appeal Tribunal held that they were bound by the earlier Court of Appeal decision of Sothern v Franks Charlesly & Co  in which Lord Justice Fry held that words to the effect of “I am resigning”, with nothing more, mean “I am resigning now.” As such Mrs Hibbert’s claim to the Employment Tribunal was out of time and they had no jurisdiction to hear it.
This case is troubling in a number of ways. In our opinion, the Employment Judge at the Employment Tribunal got it right – Mrs Hibbert’s letter was a unambiguous as to her intention to resign, but did not make it clear when that resignation was to take effect. The employer, quite correctly, sought to clarify this and did so in the letter stating that “Your last working day will be 27 July 2012.” This was clearly the intention of both parties, as shown by the fact that the employer paid Mrs Hibbert until 27 July 2012, and that Mrs Hibbert did not respond to the letter to dispute that she would remain employed until 27 July 2012. It also seems unjust that an employer can in effect mislead an employee (in this case unintentionally) as to when their employment terminates, and then be able to argue that the employee is out of time to bring a claim against them because they relied on the employer’s misleading information.
What this case does show is how difficult it can be to establish what the effective date of termination is. The message is that all parties should take great care to make sure that their intentions are accurately reflected in their communications with the other. If there is doubt, it is best to seek specialist advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).