25.11.13 When an Employee Resigns, When is the Date of Termination?

The standard procedure for resignation would be, an employee letting their employer know they are resigning and working the contractual or statutory notice period.  Their notice period will run from the day they resign and their employment will end on the expiry of that notice period. However, in the case of Secretary of State for Justice v Hibbert (UKEAT/0289/13), the reality was not that straightforward.

Mrs Hibbert had worked at HMP Wakefield since February 2008. Problems arose in January 2011, and she raised a grievance. Mrs Hibbert appealed against the outcome of the grievance in February 2012.

While the grievance appeal was pending, the governor of the prison wrote to Mrs Hibbert with the date of a capability hearing to discuss her capability and possible dismissal on the grounds of medical inefficiency. Mrs Hibbert went on sick leave the same day so the capability hearing was postponed under after her grievance appeal had been completed.

In June 2012 Mrs Hibbert’s grievance appeal was dismissed. She wrote to her employer on 29 June 2012 stating her resignation on the grounds of a breach of her contract of employment. The Prison Service replied to her letter on 3 July 2012 suggesting the reason she resigned was due to the capability hearing and gave her a cooling period as time to reconsider. Mrs Hibbert’s solicitors replied to this letter on 9 July 2012 reiterating Mrs Hibbert’s desire to resign. The Prison Service accepted her resignation and stated her last day of service would be 27 July 2012 after she served her four weeks’ notice. Mrs Hibbert submitted a claim for unfair dismissal.

They key issue that the Employment Tribunal had to take into account was whether Mrs Hibbert’s unfair dismissal claim had been lodged in time. If Mrs Hibbert wanted her resignation to take effect immediately when she resigned by letter on 29 June her claim would be out of time, however the effective date of termination was 27 July, as envisaged by the Prison Service, and therefore the claim would have been lodged in time.

The original Employment Tribunal decided the letter of 29 June was intended to begin the process of resignation and that the effective date of termination was 27 July as confirmed by the Prison Service. There was no ambiguity in the letter that might lead to the conclusion that termination should be effective immediately. The Prison Service appealed this decision.

The Prison Service relied on Southern v Franks Charlesly & Co [1981] IRLR 278 where the employee resigned immediately using the words “I am resigning.” In that case, the Court of Appeal held those words clearly stated an intention to resign immediately, even though Mrs Sothern returned to work for a few days.

Mrs Hibbert’s letter on the 29 June states “I have no alternative but to resign my position.” The Employment Appeal Tribunal held those words were unambiguous, similarly to the Sothern case. They decided it was not a case of making a decision in the heat of the moment or being pressurised by the Prison Service.

It held that Mrs Hibbert resigned on 29 June 2012 therefore her claim was out of time. Mrs Hibbert was required to give four weeks’ notice and her last working day would be 27 July 2012.

This case demonstrates how complicated dismissals, resignations and terminations can be. In any resignation situation, an employee should confirm when they intend their employment to come to an end in order to avoid complications.