Tribunal was wrong to rule that line manager had resigned

An employment tribunal was wrong to rule that an employee who had worked past a notional resignation date had, in fact, resigned.

It had failed to consider whether the fact that the employer had asked her to reconsider her resignation meant that there had been an implied agreement that resignation could be withdrawn.

The case involved Ms E Butcher and Surrey County Council.

Ms Butcher line managed another employee. They had a difficult relationship. In April 2017, Butcher took sick leave, during which time the employee submitted a formal grievance against her.

Butcher then returned to work and handed in a written letter of resignation with three months' notice.

Although the letter did not expressly mention the reasons for her resignation, it was agreed by both parties that she had decided to resign because of the difficulties with the employee she managed.

She was asked by the HR manager to consider staying and she agreed that her resignation would be conditional upon the employer dealing with the employee. She continued to work after her notice period had expired and the employer continued to pay her.

When the HR manager left suddenly, the new manager assumed that paperwork dealing with the resignation had been completed. He decided that as the retraction of Butcher's resignation had never been formally agreed to, she had to leave.

Butcher claimed constructive dismissal. The tribunal found that there was no withdrawal of the resignation and that the effective date of termination was therefore the date of the expiry of the notice period.

The Employment Appeal Tribunal overturned that decision.

It held that the tribunal erred because it had failed to properly consider that the employer invited Butcher to reconsider her resignation and to stay in employment.

The tribunal had approached the case on the basis that the resignation could only have been withdrawn by express words rather than by conduct or implication. It did not consider whether the conduct of the employer revealed that there had been an implied agreement that the resignation could be withdrawn.

The tribunal focused only on selective pieces of evidence regarding the employer's actions, to the exclusion of other relevant evidence.

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