Soufiane Amajane v Metroline Travel Limited

Parties may agree, before a contract of employment terminates, to extend a notice period or defer the effect of a resignation. Where conduct on the final day of notice may evidence such an agreement, an Employment Tribunal must determine that issue before concluding that employment ended and that it lacks jurisdiction over a subsequent dismissal claim.

An employee’s agreement to participate in a rescheduled disciplinary process may strongly suggest an agreement to postpone resignation, particularly where the employee had questioned the process because of the resignation. Failure to consider that material possibility is an error of law.

The appellant, a bus driver, gave one week’s notice of resignation. On the final day of that notice, he agreed to attend a disciplinary hearing on a later date after seeking time to obtain representation. The respondent summarily dismissed him at that hearing.

The Watford Employment Tribunal, in a judgment sent on 30 September 2021, held that the employment had ended when the notice expired. It therefore declined jurisdiction over the unfair dismissal claim and dismissed the wrongful dismissal claim. The point that employment had ended before dismissal had been raised by the Employment Judge, rather than pleaded by the respondent.

The appeal concerned whether the Tribunal had failed to consider whether the parties agreed on the final day of notice to defer the resignation pending the disciplinary process.

1. Appeal allowed and remitted. The Tribunal erred in law by failing to consider whether, on 22 January 2020, the parties agreed that the appellant’s resignation would be postponed until the disciplinary process was determined.

2. It is open to contracting parties to agree, before termination takes effect, that a notice of termination may be withdrawn or that the notice period may be extended. The agreement must be reached before the employment would otherwise end. That principle was supported by Harris & Russell Limited v Slingsby [1973] ICR 454 NIRC.

3. The appellant’s agreement on the final day of his notice to participate in a disciplinary hearing, which was rescheduled to allow representation, strongly suggested that he may have agreed to defer his resignation. The Tribunal did not specifically address that possibility, although it was material to whether he remained employed when summarily dismissed.

4. The Employment Judge was not criticised for deciding the jurisdiction point without further oral evidence. Both represented parties had been invited to object, and neither did so. However, the EAT could not itself determine whether an agreement had been made because it had not heard the relevant evidence.

5. The case was remitted to the same Tribunal to decide whether the resignation was postponed. If that issue is decided for the appellant, the Tribunal must determine the substantive claims.

• Employment Appeal Tribunal: Allowed the appeal and remitted the case to the same Tribunal.
• Watford Employment Tribunal: Judgment sent to the parties on 30 September 2021. It held that employment ended before the purported dismissal, declined jurisdiction over unfair dismissal, and dismissed wrongful dismissal.