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.

There is not normally a dismissal where an employee chooses to resign on mutually agreed terms. This is often described as “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. Agreed terminations and voluntary resignations can also make it more difficult to claim state benefits, or some benefits linked to termination of the employment, such as mortgage protection insurance.

An employee who resigns when presented with a straight choice between resignation and dismissal will normally have been dismissed (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.

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).

An employee who resigns with immediate effect in response to a fundamental breach of contract by the employer will bring the employment contract to an end straightaway. There is no need for the resignation to be “accepted” in order for it to be effective. In Secretary of State for Justice v Hibbert [2013] UKEAT/0289/13/GE, an employee wrote to her employer, using the words “I have no alternative but to resign”. The EAT said that the effect of these words was to bring the contract to an end immediately.