As with most other employment law claims, employees claiming they have been constructively dismissed only have a relatively short period of three months to submit their claims to the Employment Tribunal. Time will start to run from the date of their resignation. However, when that takes effect can sometimes prove to be a controversial issue as was seen in the recent case (Secretary of State v Hibbert UKEAT/0289/13/GE).
The facts here were that Mrs Hibbert, a Works Escort at HMP Wakefield, had raised several grievances with her employer and had been signed off sick. On 29 June, a few days before a scheduled meeting to discuss her continued sickness absence, she delivered a long letter to the employer in which she complained that her grievances had not been properly dealt with and that there had been a fundamental breach of her employment contract. In the circumstances she concluded that there was “no alternative but to resign my position“.
The employer was concerned that Mrs Hibbert had resigned due to concerns about the scheduled capability hearing and gave her 5 days to ‘cool off’ and review her decision. The response though confirmed that, it was Mrs Hibbert’s decision to resign and that the timing of the capability hearing was just one of the contributing factors. The employer accepted the resignation and confirmed that as she was required to provide 4 weeks notice her last working day would be 27 July. Mrs Hibbert remained off sick but was paid up until 27 July at which point she was processed as a leaver.
Mrs Hibbert had 3 months in which to submit her complaint of constructive dismissal and took the trigger point when time started to run from as 27 July. However, in doing this it was held that she had left it too late and that her claim had been presented out of time.
The judgement of the Employment Appeal Tribunal was that the letter she had delivered to the employer on 29 June was a clear resignation that was to take effect immediately. She had not given notice so that her resignation would take effect in 4 weeks time and the subsequent correspondence did not change the effective date of termination. As the claim had been submitted out of time, it was dismissed.
The decision really highlights that it is the wording of the resignation that dictates when the employment comes to an end. As a constructive dismissal case there was no issue of whether the employer accepted the resignation. The fact that the employer treated her as still being employed for the duration of what was the contractual notice period had no legal impact on what was the effective date of termination.
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