In this week’s alert we review a recent case involving a factory supervisor who handed in her keys and said that she was ‘done’, hugged her colleague and left site – she then wanted to return to work but was not allowed on the basis that she had resigned says Caroline Rayner of Baines Wilson LLP.
She brought claims against her former employer, including for unfair dismissal. Did she resign or was she dismissed?
Natalie Cope v Razzle Dazzle Costumes Limited
Natalie Cope worked as a factory supervisor from January 2017. Ms Cope had health issues and was undergoing treatment, she had a stoma bag which affected her both physically and mentally on a daily basis.
In 2021, a colleague accused her of bullying after the two had fallen out at work, which Ms Cope denied. She said that if she had to work with her colleague again, she would go on sick leave. She was advised to remain professional and agreed to be supportive. Shortly afterwards, Ms Cope requested a meeting with the owners of the business, during which she threatened to resign if the situation was not sorted out. She was assured that it would be and it was recognised that an ongoing dispute between colleagues could cause difficulties for the business.
Ms Cope was becoming increasingly anxious due to the accusations being levelled at her. On 9 September 2021, she tried unsuccessfully to speak to the owner’s wife, who was unable to speak to her due to being at a hospital appointment. Her anxiety intensified when her stoma bag leaked and she was visibly upset. Later the same day, Ms Cope asked another employee, Miss Edwards, whether the owner’s wife was available yet, and she was told that she was still not back from her appointment. At this point, Ms Cope placed her keys on the desk and said ‘I’m done’. She was visibly shaking and was clearly very anxious and upset at this point. Ms Cope hugged Miss Edwards and left site. Miss Edwards told the owner that Ms Cope had resigned. He did not check with Ms Cope that this was correct. She did not attend work the next day but she had already booked 3 days’ holiday to take at that time.
Later that evening Ms Cope sent a text message to the owner of the business saying “I couldn’t wait earlier to speak to you I tried but I couldn’t stay there any longer. My nerves are shot. Never in my whole life have I been made to feel like this”. No one checked with her to clarify if she had resigned. The owner and his wife went on holiday for a week thereafter and did not contact her. They relied upon Miss Edwards’ version of events, i.e. that Ms Cope had resigned.
Ms Cope submitted a sick note, covering her absence until 24 September citing stress and anxiety. A meeting took place on 21 September 2021 between the owner, his wife and Ms Cope which Ms Cope had requested. She apologized for leaving work early before her holiday and asked to come back. The owner said he believed she had resigned and said that taking her back would cause problems as the business had taken back the colleague who accused her of bullying. A further meeting took place 2 days later and Ms Cope was told that she had resigned and would not be allowed to return to work. She was given a letter confirming that after she had walked out, the company had made the decision not to allow her to return which in effect ended her employment, and that whilst she had not put her resignation in writing, her intentions were clear. Ms Cope replied to the effect that she had experienced a medical emergency on the day in question, and had felt overwhelmed due to the stress and anxiety she was also suffering. She stated that she had not resigned and pointed out that they had accepted her sick note which shows she had not resigned. She said that she had just needed some time to recover. Ms Cope issued claims for unfair dismissal, wrongful dismissal, disability dismissal.
Decision
The tribunal noted that resignation can be oral or by conduct and does not need to be written. However, it found that no reasonable employer could have considered Ms Cope’s actions on the day in question to amount to an unambiguous resignation. She did not say at any time that she was resigning or had resigned. Her words and conduct were ambiguous. The fact that she said she was ‘done’ in a highly anxious state when visibly upset, and handed her keys in which she had done before when going on holiday, did not indicate an unambiguous resignation. She was not offered a “cooling off” period and the owners of the business relied on Miss Edwards’ version without checking with Ms Cope.
On the balance of probabilities, the tribunal decided that the business took the opportunity to dispense with Ms Cope – her ongoing dispute with her colleague was a problem for them. Managing both of them was a difficulty so they “grasped the opportunity” to decide that she had resigned on that day. The colleague in question had previously resigned in writing but had been allowed to retract it.
The tribunal therefore determined that Ms Cope was dismissed by the business when she was not allowed to return, with no reason given, meaning she was unfairly dismissed. She should have been given notice of termination and therefore in the absence of this her wrongful dismissal case also succeeded. The disability discrimination claims did not succeed.
Ms Cope was awarded £7,448.96 in total, including £2,880 for a basic award, £500 for loss of statutory rights, £1920 for notice pay and £2148.96 for loss of earnings.
Comment
An employee who resigns verbally should be asked to confirm it in writing, and the contract of employment should provide for written notice to be given. If someone resigns in the heat of the moment, then it is good practice to give them a short period of time to reflect on this once they have calmed down. At that stage they should be asked to confirm this in writing.
In these circumstances, employers cannot always rely on a resignation and the context must be considered. In this case, the fact that the employee was clearly distressed due to a number of factors meant that she had not resigned and enquiries should properly have been made to establish what the true position was rather than relying on the version of events of another employee.
If you have any questions in relation to the termination of employment, contracts of employment or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
