The employee in this recent Employment Appeal Tribunal case was employed by a recruitment agency. The end user of her services closed their business during the COVID-19 lockdown and said it no longer required her services. The agency understood that the employee had requested her P45 due to being offered a new job, which the agency provided. The employee subsequently brought an unfair dismissal claim, among other complaints, arguing that she had not requested her P45 but had merely requested a copy of her contract and an advance of holiday pay. She argued that this request to the agency did not amount to a clear and unequivocal resignation.
On appeal against the tribunal’s decision that the employee’s dismissal was unfair, the Employment Appeal Tribunal acknowledged that a genuinely mistaken belief in resignation ought generally to qualify as a dismissal for “some other substantial reason” which is capable of justification where the employer has acted fairly. Whether or not the decision to dismiss in this circumstance is reasonable would depend on factors such as whether the employer:
- at the time reasonably (though mistakenly) believed that the employee had resigned; and
- whether they had taken the steps that any reasonable employer would take to establish whether the employee had in fact resigned, prior to processing the resignation, such as investigating and establishing whether the employee had indeed resigned.
We recommend that to avoid uncertainty as to the employee’s intention, employers obtain an employee’s resignation in writing. Where there is any ambiguity in the wording of the employee’s resignation, or where the employee makes a complaint that may indicate they believe they have been constructively dismissed, FSB members should take legal advice via the FSB Legal advice line.