The claimant worked for the respondents as a Sales Assistant. She was involved in a serious road accident in her home country of Poland whilst on maternity leave and had a lengthy recovery from severe injuries. She claimed that upon her return she told the respondent that she wanted to either extend her maternity leave or to start a sick line. 

The respondent claimed that the claimant informed her that she would have to leave her position and had thus resigned. What the respondent considered to be an ‘exit interview’ was then arranged but at no point were the words ‘resign’ or ‘dismiss’ used by either party. An e-mail was then sent to the claimant setting out what was discussed at the meeting and wishing her well for the future. 

The tribunal had to decide, inter alia, if the claimant was dismissed or if she resigned. The tribunal stated that the test was what a reasonable person would have understood from the exchanges, but noted that the fact that claimant’s first language was not English. Based on this, and the fact that she had suffered a very serious accident, there was a responsibility on the employer to be satisfied that the employee really did intend to resign. The tribunal went on to hold that the claimant was unfairly dismissed.

Practical lessons

In holding that the claimant was dismissed as opposed to resigning, the tribunal was critical of how the respondent handled the series of events. To start with, they should have initially clarified with the claimant if she actually tendered her resignation or not. This was particularly true since the employee did not have English as her first language. Further correspondence from the respondent occurred after the initial meeting but again the language was vague and was described by the tribunal as the respondent trying to “cover their backs”. 

It is fair to say that the employer here was guilty of sending mixed messages to the employee and should have established immediately what the her intentions were. With an increasing percentage of the workforce not having English as their first language the need to ensure clarity in such communication is only increased and the tribunal made clear that there may well exist a positive obligation on employers to clear-up any such ambiguities.