Confusion Caused by Employer Results in Claim Being Out of Time

3 mins

Posted on 28 Oct 2013

An employee’s employment terminated when she informed her employer that she had no alternative but to resign. The fact that the employer gave her five days to review her decision to resign, required her to give four weeks’ notice and paid her during her notice period made no difference.

In Secretary of State v Hibbert, H wrote to her employer by letter dated 29 June 2012 informing it that she considered it had fundamentally breached her employment contract and that she had no alternative but to resign her position. Her employer gave her time to reconsider. It then wrote accepting her resignation but required her to give four weeks’ notice, indicating that her last working day would be 27 July 2012. It paid H’s salary for July. 

H lodged an unfair dismissal claim. It was in time if the effective date of the termination of her employment (“EDT”) was 27 July 2012, when the employer stated her notice period would end, but out of time if the EDT was 29 June 2012, when she resigned. The EAT found that the EDT was 29 June 2012 and that the claim was out of time, overturning the employment tribunal’s decision that the EDT was 27 July. The resignation letter was unambiguous and it was a resignation with immediate effect. It had been written on legal advice and not in the heat of the moment. The fact that her employer required her to give four weeks’ notice and paid her for July did not affect the position. 

Like the case of Geys v Societe Generale decided by the Supreme Court late last year, this case demonstrates how difficult it can be for parties to identify the EDT correctly and the consequences of getting it wrong. The employee was unable to bring her unfair dismissal claim, despite the fact that it was her employer who gave her an incorrect termination date and paid her beyond what the EAT found to be the EDT. In unfair dismissal cases the Claimant can only extend time in which to lodge a claim if it was “not reasonably practicable” to present the claim in time. This is a more difficult test than in discrimination cases where time limits will be extended if it is just and equitable to do so. 

The legal position is that where words of resignation are unambiguous, an employee will be deemed to have resigned. Where they have resigned in the heat of the moment the employer should give the opportunity to reconsider before acting on the resignation. In this case, there was no question of the resignation being in the heat of the moment as it had been written on legal advice. The EAT rejected the tribunal’s view that the letter, whilst unambiguous as to resignation, was ambiguous as to the EDT. As a result, the resignation letter brought the employment to an end with immediate effect and nothing that happened after that affected the EDT.

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