The claimant worked for the respondent authority as the Surrey Safeguarding Adults Board Member.  In this position she line managed another employee, known in the judgment as ‘Employee A’.   The claimant had a difficult relationship with Employee A with a meeting held in April 2017 to try and resolve the difficulties, but it was not successful.  The claimant went on a period of sick leave shortly after this meeting and emailed stating that she did not think that Employee A felt any need to change their behaviour.   On her return to work in the middle of April 2017 she handed in her written three months’ notice citing the difficulties as the reason for her resignation.  The claimant was unaware that Employee A had issued a grievance against her.

The respondent asked her to reconsider her resignation and this was agreed on the condition that the respondent would deal with the conduct of Employee A.   On this basis, the claimant continued to work but never formally withdrew the resignation.  She worked past the proposed date she was to leave and continued to receive her pay from the respondent.  The claimant’s view was that the resignation had been ‘paused’ as a result of the ongoing dialogue with the respondent.  There was a change of staff in the respondent during this time.  Two weeks after the claimant’s proposed end date had passed the respondent stated that she had resigned on her notice and that she must leave her employment.

The claimant brought a case for unfair dismissal as a result of the confusion with the notice and the fact that she was told to leave her employment.   The Employment Tribunal found that the claimant unequivocally resigned working out her contractual three months’ notice.   There was never any agreement that it was to be halted or paused despite the discussions about it.  This meant that the claimant’s case was dismissed.

This was appealed to the EAT, where it was held that the Tribunal had failed to consider the relevant circumstances - that being that the respondent had asked the claimant to reconsider the resignation and stay in employment and that the claimant had continued to work past the stipulated end-date.  The Tribunal should have considered whether there was an implied agreement with the effect that the resignation had been withdrawn.  Accordingly, the appeal was allowed with the case being remitted back to the Employment Tribunal for a fresh hearing from a different Tribunal panel.

Practical Lessons

This case demonstrates how confusion can arise when agreements are not distilled down into writing.  The withdrawal of the resignation may be seen through the implied conduct of the parties but in a large organisation there may be staff moving with little evidence to then show that there was that withdrawal.  This confusion can lead to action which neither party required nor wanted.

The learning point from this is to ensure that any action taken in relation to whether an employee is to be retained or to leave should be in writing and kept on file.  This would have avoided the difficulties that arose to the extent that it has gone to the ET, to the EAT and now back to the ET.
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-e-butcher-v-surrey-county-council-ukeat-0022-19-la