Resignation

There is no dismissal if an employee resigns voluntarily. Employees are free to end the contract at any time through resignation. This is usually done by giving the notice required by the contract.

To be effective, a resignation must have been communicated to the employer. There is no rule that communication must be to a particular individual, for example the person named on the resignation letter, to be effective. It is enough for it to reach the employer’s address (Horwood v Lincolnshire County Council [2012] UKEAT 0462/11/0304). An employee who has drafted but has not sent a letter of resignation cannot be said to have resigned (Edwards v Surrey Police [1999] IRLR 456).

There is not normally a dismissal where an employee chooses to resign on mutually agreed terms, often described as a consensual termination. It is not possible to bring a claim for unfair dismissal following a genuinely consensual termination, so care must be taken when negotiating departure terms to make sure members understand their effect on the ability to bring future claims. Agreed terminations and voluntary resignations can also make it harder to claim state benefits or contractual benefits triggered by dismissal, such as mortgage protection insurance.

Sometimes someone who resigns when threatened with dismissal will be treated as having been dismissed. However, they should be very cautious, as the employer will certainly deny that there has been a dismissal in these circumstances, and it will be up to the employee to persuade a tribunal that they were dismissed, as opposed to leaving voluntarily.

An employee who successfully negotiates a severance package when faced with a threat of dismissal risks being found by a tribunal to have agreed a mutual termination, not a dismissal. The outcome is likely to depend largely on whether there was a genuine negotiation of the severance terms (see, for example, Sandhu v Jan de Rijk Transport Limited [2007] EWCA Civ 430).

An employee forced to resign should make a careful record of the details of the exchange with the employer and take advice from their rep as soon as possible. This is the aspect of the employment relationship most likely to be affected by “protected conversations”, introduced by a change to the law in July 2013 (see page 426).

Claims for constructive dismissal are looked at on page 277.

An employee who hands in their notice cannot withdraw it without the employer’s consent. There is a rare exception known as “heat of the moment” cases, where an employee resigns rashly out of anger, severe stress, or emotional immaturity. In these circumstances, the law allows a very short window (usually hours at most) in which to calm down and step back from words spoken in the heat of the moment — to say: “I didn’t really mean it” (Martin v Yeoman Aggregate Ltd [1983] IRLR 49).

An employee who resigns in the “heat of the moment” needs to act very quickly to try to put things right if they want to get back to work, taking urgent advice from a rep and making themselves available for work as soon as possible. A careful note should be kept of everything said and done, as this will form the basis of any witness statement if a claim needs to be brought.

Only exceptionally can an employer ever withdraw words of dismissal uttered in the “heat of the moment” (Willoughby v CF Capital PLC [2011] EWCA Civ 1115).