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Resigned to the Fact: When can resignation be taken as withdrawn?

The recent case of Ms. E Butcher v Surrey County Council [2020] IRLR 601, , is an interesting examination of how notice of resignation can be treated as altered or withdrawn by way of the conduct of the parties.

Background

Ms. Butcher was managed by another individual, Employee X. They had a difficult working relationship and Ms. Butcher subsequently resigned providing 3 months’ notice. Ms. Butcher’s notice was originally due to expire on 18th July 2017.

Prior to the effective date of termination a HR Manager approached Ms. Butcher and it was agreed that her resignation would become conditional upon Surrey County Council dealing with Employee X. This was not expressly agreed in writing but Ms. Butcher continued to work for and receive pay from Surrey County Council beyond the previously proposed date of termination.

Subsequently a new HR manager took over and discussed the situation with Ms Butcher. Ms. Butcher intimated to the new HR manager that she understood her notice was ‘paused’ whilst Surrey County Council addressed the issues with Employee X. On review, the new HR Manager concluded that as the retraction of Ms. Butcher’s resignation had never been agreed in writing she would have to leave and that her resignation remained effective.

Ms. Butcher brought a claim for constructive unfair dismissal. At the initial hearing the Tribunal found the resignation to be effective as of 18th July 2017 i.e. the original expiry of the 3 months’ notice period. Ms. Butcher appealed against this decision.

The Legal Position

In general, as rehearsed in the subsequent EAT judgement, the accepted principals for termination of employment on notice, whether initiated by the employer or employee are:

  • Once notice of termination or resignation has been given, it cannot be unilaterally withdrawn or varied other than by agreement between the parties.
  • The effective termination date is defined by Section 97(1) Employment Rights Act 1996, for the purposes of the above we are concerned with s. 97(1)(a):

“In relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expired”

  • An agreement in respects of variation or withdrawal of the notice of termination can be via express agreement or implied via conduct, or a mixture of both.

The judge sitting in the EAT primarily took issue with how the Tribunal had originally analyzed and assessed the facts around the withdrawal of Ms. Butcher’s resignation; concluding that the Tribunal had disregarded relevant circumstances. In particular, the fact that Surrey County Council had approached Ms. Butcher to re-consider her resignation and stay in employment. The EAT found the Tribunal had approached the matter as if withdrawal of resignation could only be conducted via express agreement, rather than adopting an approach and analysis to allow for an implied agreement by virtue of conduct of the parties, which gave rise to a withdrawal of the resignation. The Tribunal had failed to give consideration to relevant evidence.

The evidential failings, in conjunction with the Tribunal’s incorrect application of the law to the facts; led the EAT to conclude that the Tribunal had erred in its ruling surrounding Ms. Butcher’s withdrawal of her resignation. It is a pertinent reminder to consider the facts and circumstances surrounding the termination of an employment contract and not just the express verbal or written conduct of the parties in question and the importance of considering the effect of actions in assessing the true contractual position, something that should be at the forefront of consideration for both employers and employees alike in such cases.

The Employment Department at Lyons Davidson deals with claims for both Employees and Employers. If you require further information then please contact David Leslie, Partner or Michael Tait, Senior Associate.

Posted on Nov 11th, 2020 by Anthony Heywood

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