Butcher v Surrey County Council

A notice of resignation may be withdrawn or varied only by agreement between employer and employee. The agreement may be express or implied from words and conduct, and may be initiated by either party.

Where the evidence raises a real issue as to an implied agreement, the Employment Tribunal must determine the material disputed conversations and assess all relevant circumstances objectively. It must not confine its inquiry to whether express withdrawal words were used, nor selectively explain the employer’s conduct without considering how that conduct could reasonably have appeared to the employee.

The Claimant gave written notice of resignation after difficulties with an employee whom she managed. She maintained that the Respondent later asked her to remain and that she agreed to do so if the difficulties were addressed. Her written resignation was never formally withdrawn.

The notice date passed while the Claimant continued working and was paid. The Respondent later treated the resignation as effective. The Employment Tribunal held that the Claimant had resigned and that her employment ended on the notice date.

On appeal, the central issue was whether the Tribunal had properly determined whether the parties had expressly or impliedly agreed to withdraw, pause, or vary the resignation notice.

1. Appeal allowed. The Employment Tribunal erred in law by failing to engage with material disputed evidence before deciding that no agreement had withdrawn or paused the Claimant’s resignation.

2. It was common ground that a notice of resignation cannot be unilaterally withdrawn or varied. Agreement is required, but it may be written, oral, implied by conduct, or arise from a combination of words and conduct. Either employer or employee may initiate it.

3. The Tribunal had to determine what was said, by whom, and when after the resignation. It made no sufficient findings on the evidence that the Respondent wished to retain the Claimant, invited her to reconsider, and that she agreed to remain subject to the handling of the workplace difficulty.

4. The Tribunal also made an unsupported finding that administrative steps had not been taken because the Claimant’s manager left abruptly. It did not properly address the evidence concerning the potential leaving date, the absence of action when the notice date passed, or why a later manager believed that the resignation might have been withdrawn.

5. The first ground, framed as an error that only an employee could initiate withdrawal, was not established. However, the Tribunal failed to consider the Respondent’s invitation that the Claimant remain. The second and third grounds succeeded because the Tribunal appeared to require express words and considered only selected evidence rather than whether conduct objectively disclosed an implied agreement.

6. The matter was remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the issue to a differently constituted Employment Tribunal.

• Employment Tribunal, Reading: Employment Judge Vowles’ reserved judgment and reasons, sent on 31 August 2018, held that the Claimant had resigned and had not been constructively unfairly dismissed.