When is a resignation not a resignation?

The current dispute between Rangers Football Club and Mark Warburton has brought the issue of resignations to the fore (although neither party has yet to comment in any great deal on the facts behind the dispute).

What is a resignation?

A resignation is a fundamental breach of contract which terminates an employment contract. A common misapprehension is that a resignation has to be accepted by the employer. It does not.

Perhaps surprisingly there are often disputes surrounding the words of a resignation, or indeed a dismissal. These disputes, in essence, are about whether the words used by the employee (or employer in the case of dismissals) do amount to a resignation (or dismissal).

Interpretation

It is considered that where the words used are unclear or open to interpretation, tribunals should query what a reasonable person would have understood from what was said. There are also ‘special circumstances’ in which the words used may not be final. Cases in this area can relate to words spoken under emotional stress, under extreme pressure, in the heat of the moment or where a retraction has been made quickly.

One of the special circumstances cases is that of Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183. This particular case referred to an employee who had resigned during a heated discussion. Wood J explained that:

“Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk.”

Duty to consider the circumstances surrounding a resignation

A further case is that of Barclay v City of Glasgow District Council [1983] IRLR 313. Here, the Tribunal held that an employer was not entitled to treat a resignation as unequivocal due to the particular characteristics of the employee (he was considered to have learning difficulties). It was considered that there was an obligation upon the employer to consider whether the resignation was a genuine one. In this case, the employer asked the employee to sign a blank document the next day, to indicate the employee had indeed resigned. The employee had been reluctant to sign the document and indeed turned up for work the following day. The Tribunal considered that this reluctance should have been taken into account and enquiries made of the employee.

If such special circumstances apply and the employer has terminated the employee’s contract of employment, the employee may be deemed to have been unfairly dismissed (pursuant to Part X of the Employment Rights Act 1996).

If you would like advice regarding a resignation or any other employment matter, Levi Solicitors LLP would be pleased to assist. Call our employment team on 0113 244 9931.

 

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