Secretary of State for Justice v Hibbert

An unambiguous communication of resignation ordinarily takes effect according to its objective and ordinary meaning. Words stating that the employee has no alternative but to resign communicate an immediate resignation where the surrounding circumstances show a considered decision, rather than an intention to resign at a later date.

A short cooling-off period does not alter an effective resignation. It permits the giver to show that the words did not reflect a real intention to resign, but does not permit unilateral withdrawal of a resignation already given. In a constructive-dismissal case, an employee who resigns without notice in response to a fundamental breach terminates the contract on resignation; later correspondence, payment and an asserted notice period have no legal effect on the statutory effective date of termination.

The respondent employee delivered a solicitor-drafted letter stating that her employer had fundamentally breached her contract and that she had no alternative but to resign. The employer allowed five days for her to review that decision. It later purported to accept the resignation, required four weeks’ notice, and paid her to 27 July 2012.

An Employment Tribunal at Leeds held that the letter began, rather than completed, the resignation process. It found that the parties had agreed that employment ended on 27 July 2012, so that the employee’s unfair-dismissal complaint was presented in time.

The employer appealed. The central issue was whether the 29 June letter effected an immediate constructive dismissal, making the complaint out of time, or whether the effective date of termination was the later date asserted in the parties’ correspondence.

1. Appeal allowed. The Employment Tribunal erred in treating the resignation letter as ambiguous as to when the contract would end. Its conclusion that the parties subsequently agreed a termination date of 27 July 2012 could not stand.

2. The words that the employee had no alternative but to resign her position had the same objective meaning as “I am resigning now”. Applying Sothern v Franks Charlesly & Co [1981] IRLR 278, the resignation was immediate. It was a considered, solicitor-assisted communication, not a decision made in the heat of the moment or under pressure.

3. The employer’s five-day opportunity to reconsider was a cooling-off period of the kind explained in Willoughby v CF Capital Plc [2011] EWCA Civ 1115. Such a period allows the employee to establish that the apparent resignation was never intended. It does not convert an effective resignation into a notice resignation or allow unilateral retraction. The employee did not withdraw or disavow her resignation.

4. This was a constructive-dismissal case under section 95(1)(c) of the Employment Rights Act 1996. The employee accepted the employer’s fundamental breach by terminating the contract without notice on 29 June 2012. There was therefore no question of the employer accepting the resignation. The later assertion of a four-week notice period and payment to 27 July had no legal effect.

5. The statutory effective date of termination under section 97 was 29 June 2012. The unfair-dismissal complaint was consequently outside the three-month period in section 111(2), and the Employment Tribunal had no jurisdiction to hear it.

• Employment Appeal Tribunal: allowed the employer’s appeal and held that the unfair-dismissal complaint was out of time.

• Employment Tribunal, Leeds: judgment sent on 8 March 2013. It held that employment ended on 27 July 2012 and that it had jurisdiction to determine the complaint.