R Omar v Epping Forest District Citizens Advice

This was a hearing heard wholly remotely by video using MS teams. The claimant is the appellant, but I will refer to the parties as they were in the proceedings below.

The claimant was employed by the respondent legal advice centre from 22 February 2016 to 18 March 2020 as an Advice Session Supervisor. There was a dispute between the parties about the circumstances in which the claimant’s employment came to an end, and he brought claims to the tribunal of unfair dismissal, alternatively constructive unfair dismissal, and wrongful dismissal.

The claimant appeals from the judgment of the East London Employment Tribunal (Employment Judge Peter Wilkinson, sitting alone) (“the Tribunal”) given orally at what was a 1-day hearing on 27 January 2021 and sent to the parties on 2 February 2021, with written reasons following on 15 March 2021. The Tribunal dismissed all of the claimant’s claims. The claimant appealed to the Employment Appeal Tribunal (EAT) by notice of appeal dated 24 January 2022. Permission to appeal was refused by HHJ Shanks on the papers. Following a hearing under rule 3(10) of the EAT Rules on 8 December 2021, at which the claimant was represented by Stuart Brittenden under the ELAAS scheme, HHJ Auerbach granted the claimant permission to appeal on two grounds.

The grounds of appeal as articulated following the Rule 3(10) hearing are that the Tribunal erred in law in the application of the “special circumstances” exception in the cases of Sothern v Frank Charlesly[1981] IRLR 278 (“Sothern”), Kwik-Fit (GB) Ltd v Lineham[1992] IRLR 156 (“Kwik-Fit”) and Willoughby v CF Capital PLC[2011] EWCA Civ 1115, [2012] ICR 1038 (“Willoughby”), in particular:

The factual findings contained in the judgment in this case are relatively limited. Mr Wilson for the respondent submits that they did not need to be more detailed. Mr Harding for the claimant disagrees. I deal in my discussion and conclusions below with the merits of their respective positions. In order to make sense of the appeal, however, I need here to set out the more detailed factual background on which Mr Harding relies, as it appears from the documents before me. In so doing, I acknowledge, and emphasise, that the documents before me do not represent the totality of the evidence that was before the Tribunal. As well as more documents, the Tribunal also had witness statements for six witnesses and heard oral evidence. I am mindful therefore in setting out these facts that I do not have the full picture and I bear that in mind when addressing the merits of the appeal below.

The parties’ factual cases, as they appear from their pleadings (ET1 and ET3) and other documents before me are, in summary as follows:-

The Tribunal’s written reasons run to just seven pages.

The Tribunal at paragraphs 7 to 13 records the following salient matters by way of background facts:-

The tribunal went on at paragraph 14 to record the claimant’s case as being as follows, so far as relevant:

The respondent’s response was recorded at paragraph 15 as follows, again so far as relevant:

The Tribunal went on at paragraphs 16 to 21 to what it described as “the principal issue of fact in contention”, which it identified as being whether the claimant was offered a new role at the meeting on 19 February 2020. The tribunal concluded that he had not been offered another position, but that he had genuinely believed that he was being offered another position, which he declined. The tribunal further found at paragraph 20 that the claimant “did not communicate any intention to withdraw his resignation, nor any equivocation about his resignation, before the email of 23 February 2020”. Finally, the Tribunal at paragraph 21 recorded “on the basis of the agreed evidence, I find that [the claimant] declined what he believed to be the offer of another post with [the respondent] on 19 February 2020 and that he had not, as at 21 February 2020 accepted any other position with the respondent before being informed that the respondent considered that he had resigned and that his resignation would be considered to take effect from 19 February 2020”.

The tribunal made no other findings of fact. Save to the extent identified in the foregoing, the factual background and the parties pleaded cases as I have set them out above in the Background section did not appear in the judgment.

The Tribunal then proceeded to give itself legal directions.

At paragraph 22, the Tribunal set out section 95 of the Employment Rights Act 1996 (ERA 1996) which provides the statutory definition of dismissal for the purposes of Part X of the ERA 1996.

At paragraph 23, the Tribunal directed itself by reference to the authority of Harris and Russell Ltd v Slingsby[1973] ICR 454, NIRC, that a resignation operates to determine the employment relationship, that once unequivocally communicated a resignation brings the relationship of employment to an end, that a resignation does not need to be accepted in order to be effective and that once notice to terminate a contract of employment has been given, it cannot be withdrawn unilaterally, only by agreement between the parties.

At paragraph 24, the Tribunal directed itself by reference to the Sothern case and reached the following conclusion, which is the subject of the challenge on this appeal:

“24 …. I do not believe that there are circumstances here which take [the claimants]’s resignation out of the general rule and into the Sothern exception such that his resignation was not to be taken as valid. I reached this conclusion for the following reasons:

24.1

the words used were unequivocal and clearly intended to amount to a resignation.

24.2

[the claimant] is not an immature and inexperienced employee, he is an intelligent man with experience in the workplace.

24.3

there was no immediate retraction, despite [the claimant] having the opportunity to retract in meetings on the same day and on 21 February 2020.

24.5

[The claimant] expressly agreed to put his resignation in writing when he met Miss Anyanwu on 21 February 2020.

25.

Given the above, I consider that [the claimant] brought the employment contract to an end by his resignation on 19 February 2020 and his plain words of resignation were effective to terminate his employment.

26.

I have already found that no substantive offer of employment in a new position was made to him on 19 February 2020, but in the event that I am wrong about that, in any event, he is himself clear that he declined what he believed to be the offer of a new position. If the communication to him on 21 February 2020 that his resignation would stand amounted to a withdrawal of any such offer, it is clear that [the respondent was] entitled to withdraw any such offer given that it had not been accepted.

27.

Accordingly, I find that [the claimant’s] contract was terminated by him and not, as required by s 95(1) ERA 1996, by his employer and accordingly, there was no dismissal for the purposes of s 95(1)(a) ERA 1996.”

The Tribunal went on at paragraphs 28 to 32 find that there was no constructive dismissal either, the claimant not having advanced his case on the basis that he had resigned in response to a repudiatory breach.

Both parties produced Skeleton Arguments and made oral submissions. In setting out the parties’ submissions I use the abbreviated forms of the case names that I have adopted in the Law section below.

Mr Harding for the claimant began his oral submissions by addressing a question I had raised in advance of the hearing in the light of a point made in Mr Wilson’s Skeleton Argument as to whether the claimant was to be taken to have conceded his case by agreeing (as recorded at [8] of the judgment) “both that he intended the words to be understood as being his resignation and that the words were so understood by Ms Skinner”. Mr Harding submitted that this did not amount to a concession of the claimant’s case and it was not understood as such by the judge because the judge does not in the judgment regard it as determinative. He submitted that if it did amount to a concession, the judge would have had to have proceeded in accordance with the principles in Paul v Virgin Care Limited(UKEAT/0104/19/RN) (to which I had referred the parties) given that the claimant was a litigant in person.

As to the legal principles to be applied to the dispute in this case about whether the claimant had resigned or been dismissed, Mr Harding submitted that the relevant legal principles were well settled and that although an employer was normally entitled to rely on words of resignation in accordance with their plain and natural meaning, there were ‘special circumstances’ that could oust the application of the general rule. He referred to the judgments of the Court of Appeal in Sothern, Sovereign Houseand Willoughby and to the judgment of the EAT in Kwik-fit.

As to the extent to which the test to be applied was subjective or objective, Mr Harding referred to Sothernand submitted that Dame Elizabeth Lane at [25] had not adopted a wholly objective test, but had taken account of the claimant’s subjective intention and also the employer’s understanding. As to what Fox LJ said at [19], Mr Harding submitted that if the employer understood what was intended that was normally sufficient, but Fox LJ’s obiter observations at [21] were an exception to that.

He emphasised that it was clear from Sovereign Housethat the fact that unambiguous words of resignation were used, and were so understood by the employer, did not mean that the resignation was effective if there were special circumstances. He submitted that the authorities refer to the employee’s intention, but as a matter of common sense they cannot mean that the matter is determined by whether the employee intended to resign in the moment that he or she said words of resignation, because the employee in the heat of the moment probably did intend to resign, but the question was whether, once all the circumstances were considered, the employee ‘really’ intended to resign. He referred to Willoughbyat [27] as setting out the principles. He noted that the Willoughbycase itself indicates that a mistake does not amount to special circumstances, and also that a different approach may be taken to heat of the moment actions by an employer and an employee (although cf the Martin case which takes the same approach to the employer as to employee).

Mr Harding referred to Kwik-Fitand highlighted the facts of the case at [12] and the principles at [31]. He accepted that what followed paragraph [31] indicated that Wood J had been under a misconception that a resignation is a repudiatory breach of contract, but that the question of the length of time during which an employee reflects and ‘changes their mind’ or retracts must be relevant to determining whether the employee truly intended to resign at the time.

As to Denham,Mr Harding submitted that the EAT’s judgment in that case merely set out the orthodox situation in which there is normally no room for any notion of ‘special circumstances’. He submitted that Denham was quite different to this case in which the claimant had resigned and been treated as not having resigned at least once previously.

Mr Harding took me through the factual basis of the claimant’s case, the main elements of which I have sought to capture when setting out the Background to this matter above. He submitted that if, as appeared to be agreed, Ms Anyanwu on 19 February asked the claimant and Ms Skinner if they could work together, that was the employer was looking for a way to smooth matters over and indicated that it was understood that the claimant had not intended to resign. He also referred to the emails in the bundle which show that as at 20 February Ms Anyanwu was unsure as to whether the claimant wished to resign, and that Ms Skinner had on reflection said that she could not work with him. There is also an email from Ms Wells of HR saying that she is “not happy with him threatening his resignation and then taking it back” which he submitted indicated that the employer did not regard the claimant as having resigned.

As to the meeting on 21 February, the claimant’s position as pleaded was that the meeting had started with Ms Anyanwu saying “before you say anything Jenny has decided that she cannot work with you and therefore your resignation will stand”. It was in this context that the claimant said he was offered a new position to consider.

Mr Harding then turned to the judgment under appeal. He emphasised that the claimant was unrepresented before the Tribunal. He pointed out that the Tribunal has not in its findings of fact dealt with the words that were used or the context of the altercation on 19 February 2020, or with anything that was said on 19 February 2020 other than the question of whether the claimant was offered an alternative position at that meeting. Nor is there any mention of the claimant’s evidence as to his personal circumstances. At paragraph 11, there is a record that it is agreed that the claimant was asked to put his resignation in writing and that he agreed to do so, but the rest of the conversation on 21 February 2020 is not dealt with at all, including in particular the claimant’s case that the meeting had started with Ms Anyanwu saying that Ms Skinner had decided that she could not work with him.

He submitted that the Tribunal had clearly erred at paragraph 16 in identifying ‘the principal issue of fact’ as being whether the claimant was offered a new role at the meeting on 19 February 2020. That factual dispute was relatively unimportant, if not irrelevant to the legal issue. The principal issues were, he submitted, whether the special circumstances on which the claimant sought to rely had happened as he described. The tribunal had failed to focus on the claimant’s and respondent’s state of mind, understanding and intentions.

He submitted that the Tribunal at [24] had failed to address the evidence of the claimant’s real intention, his state of mind or personal circumstances, the Tribunal just says that the claimant was not immature, that he was experienced and intelligent. Further, what the Tribunal says about there being no immediate retraction of the resignation fails to have regard to what actually happened at the meetings on 19 February and 21 February.

For all these reasons, Mr Harding submitted that the judge had not made adequate factual findings and had not considered the special circumstances properly in accordance with the authorities.

Mr Wilson submitted that there has been an evolution of the law since the Sotherncase, where the obiter comments are seized upon in subsequent cases up to the case of Willoughby. He submitted that Willoughbywas the most thorough examination of the law to date. He submitted that, in the absence of special circumstances, a person is bound by their unambiguous words. He submitted that at [37]-[38] the Court of Appeal emphasises that the exception is not an opportunity for a unilateral retraction. The Court says that what needs to be considered is whether the employee’s “mind was not in tune with his words”. In Willoughbythe employer fully intended to dismiss, it was just mistaken as to the employee’s wishes.

Mr Wilson submitted that the first question is always whether unambiguous words were spoken or not, and the next question is whether you intended to resign when speaking those words. He submitted that the claimant in this case ‘fell at the first hurdle’ because he did intend to resign when he said he did. He submitted that the special circumstances exception requires the employer to ask themselves whether the person did or did not really intend to resign. If the employee did intend to resign, that was the end of the matter.

He submitted that you could use heated words and fully intend to resign and you can use heated words and not mean them and have no real intention of resigning. Kwik-fitwas saying that you need to look at what happens afterwards and whether circumstances put you on notice that further enquiry is desirable. However, Denham reflects the orthodox position. There is a reference in that case to the employee having been depressed at the time of tendering her resignation (p 34), but that was not sufficient to displace the ordinary rule.

Mr Wilson submitted that the problem in this case was that the claimant accepted that he fully intended to resign on 19 February and that, on the analysis of Willoughby,that was the end of the matter, or should have been the end of the matter in this case. He submitted that effectively the claimant had conceded his case. He dealt with the Paul v Virgin Carecase that I had provided to the advocates by submitting that allowing the claimant to make a concession in this case would not offend against the principles set out at [29]-[36] of that case, because he was not making a concession of law or as to his claim, but stating what his own factual case was as to his own state of mind. If, as he accepted, the claimant’s state of mind was such that he intended to resign, that was the end of his case.

Mr Wilson submitted that it was important to consider whether the respondent ought reasonably to have understood that there was no intention to resign, but in this case the claimant did intend to resign. However, he agreed that there was no need for an employer to accept or reject a resignation for it to be effective.

As to the Tribunal’s decision in this case, he submitted that what the Tribunal does at [24] shows that it asked itself the right legal questions and answered them. The Tribunal had properly considered the critical period after the words were spoken and found that the claimant had delayed too long in seeking to withdraw his resignation.

He argued that Mr Harding is wrong and that there was nothing more in the case that the Tribunal needed to consider given the claimant’s concession. The Tribunal could be taken to have read the evidence, and the use of the word “altercation” in [8] indicated that the Tribunal understood this was a ‘heat of the moment’ statement. The respondent’s ET3 pleaded a clear factual position. There was nothing further that needed to be explored, particularly given the claimant’s confirmation in the meeting on 21 February that he would send a letter confirming his resignation. The cooling off period was allowed and considered by the Tribunal, and the Tribunal gave adequate reasons for its conclusions at [24].

Mr Wilson submitted that the facts relied on by the claimant through Mr Harding on this appeal are not facts that were necessary to answer the legal issues and the other factual disputes between the parties did not need to be resolved in order to determine the legal issues.

He pointed to the claimant’s email of 23 January (p 68) which he submitted is written as if he had resigned and wished to retract that, not in terms that he did not mean to resign in the first place. This underscores that the claimant is stuck with the effect of the orthodox rule.

(At this point, the claimant interjected to say that he had retracted his resignation at the first opportunity. I explained that he needed to communicate with Mr Harding any points that he wished to make and checked that he and Mr Harding were able to communicate with each other.)

As to the Tribunal at paragraph 16 identifying the principal issue of fact in contention as being whether an offer had been made, Mr Wilson submitted that the claimant had put in a 19-page witness statement and there is nothing to suggest that the judge did not take that evidence into account in reaching his conclusions.

He submitted that on the two previous occasions when the claimant had resigned, he had been talked back into his job. Consideration was given to doing that again on this occasion, but then the respondent decided against that. An employer does not have to allow an employee to change his mind.

Mr Wilson invited me, even if I find there was an error, not to remit this case because in accordance with Jafri v Lincoln College[2015] QB 781there was only one possible outcome in this case. The claimant intended to resign, and should not be allowed to resile from that, and so there was only one answer available in this case.

Mr Harding submitted that Willoughbydoes not actually say that if there are unambiguous words they cannot be resiled from. The submission from Mr Wilson seems to be that if the claimant had conceded his case, the judge did not understand the law enough to realise that he had conceded his case. He submitted that that was an acceptance that the judge had erred in law. Mr Wilson’s approach was too binary and the case was more complex than that.

Mr Harding submitted that there was a lot the Tribunal did not consider including the two previous non-genuine resignations, and what happened in the 19 and 21 February meetings. In a nuanced case like this, there have to be proper factual findings.

The claimant did not need formally to retract his resignation earlier because he understood the 19 February meeting to be a reconciliatory one. It was only when he was told on 21 February that Ms Skinner did not want to work with him and the respondent wanted him to confirm his resignation in writing that he needed to retract his resignation.

A claim of unfair dismissal can only be brought where an employee has been dismissed within the definition in section 95 of the ERA 1996. That section provides as follows:-

In this case, the claimant’s case was that he had been dismissed by his employer (i.e. dismissed within the meaning of s 95(1)(a)) when the respondent (Ms Anyanwu) informed him on 21 February 2020 that Ms Skinner could not work with him. The respondent’s case was that this did not amount to a dismissal as the claimant had already resigned on 19 February 2020. A resignation is not a dismissal within the meaning of s 95 unless it falls within the terms of s 95(1)(c) (constructive dismissal), which the claimant was not (by the final hearing) contending in this case.

It is well established, and not in dispute on this appeal, that whether or not an employee is dismissed for the purposes of s 95 is to be determined by reference to ‘ordinary’ contractual principles (cf Western Excavating (ECC) Limited v Sharp[1978] QB 761 and Aberdeen City Council v McNeill[2013] CSIH 102). The parties have not suggested (rightly, in my judgment) that the definition of dismissal in s 95 requires anything other than a standard contractual analysis as to whether the contract has terminated and, if so, whether: (a) by the employer, (b) by the occurrence of a limiting event under a fixed term contract, or (c) by the employee in circumstances where he is entitled to terminate without notice (i.e. in response to an employer’s repudiatory breach). This is not a provision dealing with a statutory concept such as “effective date of termination” in s 97 (cf Gisda Cyf v Barratt[2010] ICR 1475).

The parties to this appeal agree that the conventional contractual position, applicable to dismissals within the meaning of s 95 and to ‘ordinary’ resignations, is that a notice of dismissal or resignation once given cannot be unilaterally retracted: see Willoughbyat [25] and [37] (to which I return at the end of this review of the case law). This principle is well illustrated by Denham v United Glass Ltd (UKEAT/581/98) (“Denham”). This is not the earliest of the authorities I have been referred to, and I will come back to it in its proper sequence below, but it provides an appropriate starting point for considering the less conventional cases on the “special circumstances exception” on which the claimant relies in this appeal.

Denhamwasa decision of the EAT (Lord Johnston, Miss Ayre and Mr Speirs). In that case, the claimant had handed an unequivocal letter of resignation to his supervisor on 20 March 1997, who passed it on to the respondent’s personnel department. Before the personnel department read the letter, the claimant informed his supervisor verbally that he wished to retract his resignation. The Tribunal found he had resigned and the EAT dismissed the employee’s appeal. The EAT held, with reference to authorities that there is no need to detail here:

I add that the ‘sharp distinction’ between repudiation and notice of determination referred to by the EAT in that passage is that a repudiatory breach does not operate to terminate the contract, unless and until accepted by the other party: see Geys v Societe Generale[2012] UKSC 63, [2013] 1 AC 523, where the Supreme Court resolved this point on which there had long been a dispute in the case law.

In deciding whether a notice of termination (whether of resignation or dismissal) has been effectively given, the parties to this appeal are also not in dispute that the orthodox position is that this is to be determined objectively, by reference to the language used and the circumstances in which it is used, including the matters within the knowledge of the parties at the time, but not by reference to the subjective intentions of the parties: see Willoughbyat [26] and, for the general principles of contractual interpretation: Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, as reaffirmed in Wood v Capita Insurance Services Limited[2017] UKSC 24, [2017] AC 1173.

I now turn to consider the line of authorities that I have been referred to on this appeal dealing with less conventional termination situations, i.e. the ‘special circumstances exception’ cases as they are often referred to. The line of authorities begins with Chesham Shipping Limited v C A Rowe[1977] IRLR 391 (“Chesham”). The parties did not provide me with a copy of this decision (or a number of the other early authorities), but all the authorities that I have considered are referred to in the authorities that the parties did provide. I have gone back to the full judgments in each case in order to extract fuller details of those cases in order to illuminate the later authorities. I indicated to the parties at the hearing that if when undertaking this exercise there appeared to me to be a new point on which the parties ought fairly to be given an opportunity to make further submissions, I would afford them that opportunity. In the event, however, it seemed to me that my review of the earlier authorities did not reveal any additional issue that the parties had not already had an opportunity to deal with at the hearing.

Chesham was a decision of the EAT (Phillips J, Mr Clement-Jones and Mr Thomas). The claimant and two other officers were summarily dismissed by their employer in a fit of temper. After calming down and ascertaining who was really to blame, the employer sought to reinstate the three officers, but the claimant did not consent to be reinstated and treated himself as dismissed. The EAT affirmed the orthodoxy that reinstatement or withdrawal of a notice of dismissal could not be achieved unilaterally, but made the following obiter observation:

The crucial elements of that obiter observation for are as follows: (i) unequivocal words of termination may not in law amount to a resignation or dismissal (as appropriate); (ii) whether they do or not is to be judged in all the circumstances of the case; (iii) an objective test is to be applied as to whether everybody ‘understands or should understand’ that the words not only constituted words of termination but were ‘seriously meant’. (I interpolate here that the phrase “I’ll have my cards” or “have your cards” may strike those of us who are not old enough to remember workplaces of the 1970s as being a puzzling and highly ambiguous phrase. It is, however, clear from Cheshamand the cases that follow that it was for some time a phrase in common parlance, along with “have your books”, and well understood as constituting words of dismissal or resignation.)

The next case is Tanner v D T Kean[1978] IRLR 110 (“Tanner”). The facts as they appear from the headnote are as follows:-

Mr Tanner claimed that he had thereby been dismissed, but the industrial tribunal found that he had not. The EAT (Phillips J, Mrs D Ewing and Mrs Sunderland JP) upheld the tribunal’s decision. At [2]-[4] the EAT observed as follows:

The EAT in Tanner was thus making a number of points about the applicable principles, points which are not consistent with the obiter observation in Chesham. First, at paragraph 3, the EAT appears to take the view that if words are unequivocally words of dismissal, that is all that is required, there need be no further analysis and it is only if the words are equivocal (in that case “you’re finished with me” spoken in anger) that a Tribunal need look further. Secondly, at paragraph 4, the EAT holds that what is key is what was “really intended” by the employer, but the EAT does not ‘pin its colours to the mast’ as to whether it is the subjective intention of the employer that matters or how it objectively appears to the employee in that situation or a ‘reasonable bystander’. The EAT does indicate that the objective appearance is a relevant, and possibly the most important consideration, but on the face of that paragraph it would appear that if an employer adduced evidence that he did not at the time intend to dismiss that would suffice, even if that was how objectively it reasonably appeared to the employee. Finally, the EAT draws a distinction between the quest to divine from subsequent events what was the employer’s real intention at the time from a subsequent ‘change of mind’ by an employer. Changes of mind, the EAT is clear, are not permitted.

The next decision in the chronology is B G Gale Ltd v Gilbert[1978] IRLR 453 (“Gilbert”). The facts as they appear from the headnote were:

The Tribunal found that the claimant had been dismissed and the employer appealed. The EAT (Arnold J, Mrs Taylor MBE, Mr Hughes OBE) allowed the appeal, but granted leave to appeal to the Court of Appeal (which does not appear to have been pursued). The EAT opened its consideration of the case as follows at [4]:

The EAT went on to quote with apparent approval passages from the judgment of the EAT in Tanner that I have set out above, including paragraph 4 which, as I have noted above, is unclear as to whether a subjective or objective test applies. The EAT then went on to consider the Chesham Shippingcase and notes the passage in it in which the EAT made reference to the phrase, “Well, I’ll have my cards” as not being a resignation in circumstances where “everybody understands, or should understand, that that is not seriously meant”. The EAT in Gilbertobserved that this was an invitation to the Tribunal, when in doubt about the effect of words used, to consider the subjective understanding of the parties. The EAT in Gilbertwent on to hold that what the EAT in Chesham Shippingsaid about the phrase “Well, I’ll have my cards” was obiter and that, in fact, the words “Well, I’ll have my cards” meant unambiguously “I am resigning”. The EAT in Gilbertfurther observed that the Tribunal in that case had found as a fact that that was how the words were understood, and continued (at [10]): “we very much regret that we come to the conclusion that in those circumstances that finding cannot be overridden by any appeal to what a reasonable employer should have or would have understood”.

The EAT in Gilbertthus takes the view that although (see its paragraph 4 above) the subjective intentions of the giver of the notice (or sayer of the words) are not relevant, what is subjectively understood by the recipient is determinative – even if objectively something else should have been understood. The EAT reaches that view with regret because, as it goes on to point out, the consequence of it taking that view is that it opens the door to an opportunistic employer fastening on the intemperate language of the employee to bring about a convenient resignation of a difficult employee, even where the employee did not intend to resign and a reasonable employer would not have understood them to intend as such. Likewise, I observe, an opportunistic employee might fasten upon the words of an intemperate employer to claim unfair dismissal (with attendant compensation) when the employer did not intend to dismiss and a reasonable employee would not have so understood it.

The next case in the chronology is Sothern v Frank Charlesly[1981] IRLR 278 (“Sothern”), which was a decision of the Court of Appeal (Stephenson LJ, Fox LJ and Dame Elizabeth Lane) on appeal from the EAT. Mrs Sothern was a “mature employee”, of 44 years of age, and an experienced office manager. In the context of deteriorating relations between her and the firm’s senior partner, at a partner’s meeting she stood up at the end of the meeting and said she ‘had something to say’, which the tribunal found as a fact to be “I am resigning”, and she was thereupon thanked for her services. The next day she returned to the office, taking the view that she was staying on and that if the firm wanted her to leave, they would have to dismiss her. Eventually, she was told that she was regarded as having resigned at the partners meeting and that her resignation had been then accepted. She claimed that she had been unfairly dismissed and the claim succeeded before the Industrial Tribunal. The tribunal held that the words “I am resigning” were ambiguous, because they could have referred to a future intention to resign and not a present intention, so that a reasonable employer would not have interpreted the words as a resignation in the circumstances of the case. The tribunal’s decision was upheld on appeal to the Employment Appeal Tribunal. The employer’s further appeal to the Court of Appeal was allowed. The Court of Appeal disagreed with the Tribunal and the EAT, holding that the words “I am resigning” were not ambiguous, that Mrs Sothern’s resignation was therefore effective and she had not been dismissed.

The Court of Appeal was unanimous as to the outcome, but each judge expressed their views slightly differently as follows. Fox LJ gave the leading judgment:

I observe that Fox LJ at [19] affirms the orthodoxy that in matters of contract the question of whether the contract has been terminated and when is to be determined objectively so that, if unequivocal words of resignation are said, that suffices as notice of termination of the contract. However, Fox LJ also affirms what the EAT in Gilbertsaid to the effect that although the subjective intention of the person who utters the words of termination is not relevant, the subjective understanding of the recipient of those words is relevant, so that if the employer unreasonably concludes that an employee has resigned that is nonetheless sufficient to constitute a resignation. This (rather difficult) element of the Gilbertdecision thus forms part of the ‘normal rule’ as Fox LJ sees it.

Fox LJ then goes on at [21] to lay out, obiter, the possibility of cases (referred to in subsequent authorities as ‘exceptional cases’) where the normal rule as he identified it to be might not apply.The cases to which he refers there (the immature employee, a decision taken in the heat of the moment, or an employee being jostled into a decision by the employers) are evidently non-exhaustive examples.

Dame Elizabeth Lane takes a slightly different approach at [25]-[26] as follows:-

Dame Elizabeth Lane thus does not affirm the Gilbertapproach of ignoring the subjective intention of the person who speaks the words of termination, or of treating the subjective understanding of the recipient of the words of termination as determinative. As I read her judgment, she holds that unequivocal words of termination may nonetheless not in law amount to words of termination if they would reasonably be understood (objectively) as being idle words or words spoken under emotional stress that ought not to be taken seriously. She quite specifically differs from Fox LJ and the EAT Gilbertin holding that the subjective view of the recipient of the words is not determinative – it is an objective test.

Stephenson LJ at [30] agreed with both the judgment of Fox LJ and that of Dame Elizabeth Lane, and does not deal with what I have identified as the point on which the two judgments differ. The basis for his judgment is, it seems to me, quite simply that unambiguous words of resignation had been used and accordingly Mrs Sothern had resigned. His judgment does not expressly acknowledge that there may be any exceptions where unambiguous words have been used.

The decision of the Court of Appeal in Sothernwas next considered by the EAT in J & J Stern v Simpson[1983] IRLR 52 (Tudor Evans J, Mrs D Ewing and Mr R Thomas JP) (“J & J Stern”). The central facts of that case were that the business owner, who had been seriously ill, shouted at the claimant, “Go, get out, get out”. The claimant left and when he returned to the premises found the locks changed. The Tribunal, however, made no findings of fact about the surrounding circumstances or why the locks had been changed (the respondent’s case being that it had been intended for some time to change them). The EAT allowed the appeal on the basis that the Tribunal had erred in law by making incomplete findings of fact as to all the relevant circumstances. In reaching that conclusion, the EAT rejected the submission of counsel that Sothernwas authority for the proposition that unambiguous words were to be considered in isolation from all the circumstances of the case and that it was only in cases of ambiguity that one could look to the surrounding circumstances. The EAT held at [6] that the proper approach in all cases was “to construe the words in all the circumstances of the case in order to decide whether or not there has been a dismissal”. The EAT expressed the view that even Stephenson LJ in Sothernhad in fact construed the words used against all the circumstances of the case. At [8] the EAT further held that the subjective intention of the speaker of the words was irrelevant and that the Court of Appeal’s decision in Sothernwas to be read as agreeing with that.

The next consideration of the Sotherncase was by the EAT in Barclay v City of Glasgow District Council[1983] IRLR 313 (“Barclay”). In that case, the claimant was an employee of the parks department for the respondent local authority. He had an altercation with his manager which ended with him saying he “wanted his books” the next day. The next day he was asked to sign a blank form that the respondent used when employment was terminated. The claimant is described in the judgment as being “mentally defective” – not a term that we would now use.He did not realise what had happened and reported for work on Monday, but was sent home by the foreman on the ground that he had resigned. The tribunal dismissed his claim for unfair dismissal, but on appeal the EAT (Lord McDonald MC, Mr Barrie Abbott and Mr McAteer) reversed the decision. The EAT applied Fox LJ’s obiter paragraph[21] in Sothernto uphold the appeal as follows:

The approach of the EAT in Barclaywas thus one that followed the J & J Sternapproach of holding that even unambiguous words of termination need to be construed in context in all the circumstances of the case. The EAT applies an objective test of what a reasonable employer would understand in the context, and the ratio of the case confirms (contrary to the EAT in Gilbertand Fox LJ in Sothernthat the subjective understanding of the employer is not determinative). The EAT further makes the focus of the question as to the respondent’s objective understanding the question of whether the employee ‘consciously and rationally’ intended to resign, the answer to which the EAT accepts may be inferred from the employee’s subsequent actions.

The next case in the chronology is Martin v. Yeoman Aggregates Ltd [1983] ICR 314 (“Martin”), a decision of the EAT (Kilner Brown J, Mr E Alderton and Mrs D Ewing). The facts of the case as they are recorded in the headnote were as follows:-

The EAT dismissed the employee’s appeal on the grounds that the words were used in the heat of the moment and withdrawn almost immediately. Kilner Brown J, in delivering the judgment of the EAT, referred to the authorities of Gilbert, Sothernand Tannerand held:

I observe that although the EAT in Martindoes not recognise it, the decision in that case actually departs from previous authority in a very significant respect in expressly accepting a principle that an employer or employee may have an opportunity of ‘recanting’ and ‘changing their mind’ about a dismissal or resignation. That is a radical departure from the orthodoxy as expressed in Denhamand Tannerthat a resignation or dismissal once communicated cannot be withdrawn. Further, while that may as a matter of fact be what in reality had happened in a number of the earlier cases, it is important to note that none of the earlier cases articulate the principle in those terms. The earlier cases took the principle to be that the question was whether the words of termination were ‘seriously meant’ (Chesham, Gilbert, Dame Elizabeth Lane in Sothern), ‘really intended’ (Tanner) or, albeit intended at the time, ‘not a conscious rational decision’ (Barclay).That Martinis out of line with the authorities in this respect is recognised by the Court of Appeal in the Willoughbycase, which is the last in the line of authorities to which I come below.

The decision in Sothern came under scrutiny by the Court of Appeal again (May, Croom-Johnson and Woolf LJJ) in Sovereign House Security Services Ltd v Savage [1989] IRLR 115 (“Sovereign House”). The facts of that case are summarised in the headnote as follows:

The claimant in that case brought a claim of unfair dismissal which was upheld by the tribunal, the EAT and the Court of Appeal. May LJ giving the judgment of the Court of Appeal held as follows:-

May LJ then referred to the judgment of Fox LJ in Sothern at [19] and [21] and continued:

He then referred also to the judgments of Dame Elizabeth Lane and Stephenson LJ and concluded that they were to the same effect. May LJ went on at [12]-[13] to point to evidence from Mr Savage that he had not intended to resign, and that Mr Price had not understood him as meaning that, so that it had been open to the Tribunal to reach the conclusion it did on the facts of that case. The Sovereign Housecase thus holds, as part of the ratio of the Court’s judgment in that case, that evidence as to the subjective intentions of the speaker of the words is relevant, as well as evidence as to the subjective understanding of the recipient. The Court of Appeal does not, however, appear to have noticed that in holding that evidence of the subjective intention of the speaker of the words is relevant it was departing from Sothernin the Court of Appeal and also Gilbertand J & J Sternin the EAT. Significantly to the present appeal, though, May LJ does not suggest that the subjective intention of the speaker, or subjective understanding of the recipient, would be determinative of the issue. The Court of Appeal otherwise applies an objective test and it seems to me that, insofar as it held that evidence of the undisclosed subjective intention of the employee was relevant, that element of the judgment was per incuriam and out of line with other authorities, including the Court of Appeal’s judgments in Sothern(above) and Willoughby(below).

The next case in the line of authority is Greater Glasgow Health Board v Mackay [1989] SLT 729 (“Mackay”). In that case, the employee had an altercation with her superior the day after a disciplinary hearing. She stated that she was leaving and then wrote out a letter of resignation, which she addressed and delivered to the department manager, which he accepted. She did not return to work. Three weeks after writing her letter of resignation, she wrote asking to withdraw her resignation, to which the employer declined to agree. She complained that she had been unfairly dismissed. The ET held that she had and the EAT upheld its decision. The Court of Session allowed the employer's appeal. Lord Ross referred to Sothernand Barclayand held as follows at 732–733:

Lord Wylie, at 736, said this:

Lord Cowie, after referring to the exceptional circumstances referred to by both Fox LJ and Dame Elizabeth Lane in Sothern, held at 737:

The next decision in the chronology is Kwik-fit (GB) Ltd v Lineham[1992] IRLR 156 (“Kwik-fit”). That was a decision of the Employment Appeal Tribunal. The facts are summarised in the headnote as follows:

The employer appealed. The EAT (Wood J, Mr Powell and Mr Springer) considered that the tribunal had been wrong to express its decision in terms of there being a duty on an employer to check with the employee as to their intentions, but dismissed the appeal. The EAT reviewed the authorities that I have set out above, and held as follows at [31]:

It is thus from this decision that the term “special circumstances” is taken that has come to be applied to this line of authority generally. The EAT affirms the orthodoxy that normally unequivocal words of termination can be taken at face value, but also confirms that it is an objective assessment to be made in all the circumstances of the case as to what was ‘really intended’, and that in deciding what ‘really intended’ regard can be had to what happens subsequently.

Unfortunately, what follows this paragraph of the EAT’s judgment in Kwik-fit needs to be treated with caution because, as the EAT in Denhamobserved, the EAT at [32] in Kwik-fiterrs in law in treating a resignation by an employee as “a repudiation of the contract of employment, a fundamental breach” which thus requires to be accepted or rejected by the employer. That is wrong because in almost all cases an employee will have an express or (occasionally) implied right to terminate the employment on notice and resignation will normally be in accordance with the contract and not a breach of it. Further, even where (as happened in Sothern) an employee fails to give notice in the form or for the duration required by the contract, that may be a breach but is unlikely to be a repudiatory one (cf the Court of Appeal’s treatment of the employee’s failure to put the notice in writing as required by the contract in Sothernat [22]).Given that error of law in Kwik-Fit, I do not consider that any reliance at all can be placed on the EAT’s further observations in that case about the ‘reasonable period of time’ during which the subsequent conduct of the employee may be taken into account as relevant in deciding whether resignation was really intended, because what the EAT says there is predicated on its erroneous view that the employee’s resignation required to be accepted by the employer before it was effective.

The next case in the chronology is Denham which I have already referred to for the orthodox principle that a resignation or dismissal once communicated cannot be retracted. However, that case also considered Kwik-Fitand rejected the claimant’s attempt to rely on the ‘special circumstances’ exception as follows:

The EAT in Denham then referred to Kwik-Fit at [31] and continued:

I remind myself at this point that the facts of Denhamwere that the employee tendered his resignation to his supervisor when stressed and depressed and then changed his mind and withdrew the resignation over the weekend and before the personnel department had read the letter. I cannot see that there is any principled justification for the difference in outcome as between Martin(where the employer rapidly changed its mind)and Denham(where the employee did), but it seems to me, for the reasons noted when dealing with the Martincase above, that it is the Martincase that is out of line with the other authorities and not Denham. I also note that in both Martinand Denhamthe result of the appeals was that the decision of the first instance tribunal was affirmed, which reflects the importance even in these cases of the tribunal’s findings of fact at first instance.

The final authority is Willoughby v CF Capital Plc[2012] ICR 1038 (“Willoughby”), a decision of the Court of Appeal (Laws, Hooper and Rimer LJJ). The facts of that case were that Ms Willoughby and her manager had had a conversation about her potentially moving to self-employment. The line manager mistakenly believed that Ms Willoughby had agreed to this and sent her a letter stating, “we have been able to mutually agree to a change in your employment status and our working relationship will continue by your move into self-employment. The termination of your existing employment contract will be effective from 31 December 2008. Your agency agreement will commence 1 January 2009 ...”. Ms Willoughby took legal advice and then telephoned to say that she would not be accepting the self-employment arrangement, that she had not agreed to it and had been advised that the letter amounted to termination of her employment. The line manager sought to reassure her there had been a misunderstanding and that if she was not in agreement her employment could continue as before. She brought a claim of unfair dismissal, to which the employer’s response was that she had resigned. The Tribunal dismissed her claim, finding that while, on the face of it, the December letter would have amounted to a dismissal, there were “special circumstances” to be taken into account. It said that a reasonable person, understanding the true outcome of the December meeting, would have realised on receiving the December letter that something was seriously wrong, that there had been a mistake and that the reference to termination of her contract of employment had been an error. The words had been withdrawn as soon as practicable after the claimant had alerted the employer to the mistake that it had made. 

The Employment Appeal Tribunal ([2011] IRLR 198) held that the tribunal had not applied the correct test. Having correctly recognised that the December letter included unambiguous words of dismissal, it had failed to ask itself whether Ms Willoughby had been entitled to regard the dismissal decision expressed in the letter as a conscious, rational decision. It was not enough that, as the tribunal found, Ms Willoughby would have concluded from the letter that something was seriously wrong and that CFC had made a mistake. If the perception that the dismissing employer or the resigning employee was or might in some way have been mistaken in issuing a letter of dismissal or resignation was itself a “special circumstance”, the exception would have overtaken the rule. Ms Willoughby and her lawyers had been entitled to take the letter of dismissal at face value. The employer appealed and the Court of Appeal (Rimer, Hooper and Laws LJJ) dismissed the appeal, holding that the employer’s mistake did not fall within the special circumstances exception.

Rimer LJ gave the judgment of the Court, setting out the legal principles as follows at [25]-[27]:

He then commenced a review of the authorities, including most of those I have referred to above. At [36] he quoted from the judgment of the EAT in Kwik-Fit, both [31] and [32], which latter paragraph contains the error that a resignation is a repudiatory breach of contract. Rimer LJ makes no comment about that error. The discussion and conclusion of the Court of Appeal in Willoughbyis then as follows:-

The Court of Appeal in Willoughbythus brings a measure of coherence to the previous authorities, and the recognition that the “special circumstances” exception is not in truth an exception to the general rules about notices of termination in the employment context is significant in affirming that, even in these difficult cases, basic contractual principles still apply. However, although Willoughbyis the last in this line of authorities, the two previous Court of Appeal authorities of Sothernand Sovereign Houseare of equal value as precedents, at least insofar as Willoughbydoes not deal with and resolve points raised in those authorities, and there are also some aspects of this line of authority that have to date only been considered at EAT level.

Further, I observe that, by couching the legal principles in terms of what the recipient of words of termination would be ‘well advised’ to do, the Court of Appeal’s judgment in Willoughby comes unfortunately close to imposing a ‘duty’ on the recipient of the words to take action, which was language which it seems to me was rightly deprecated by the EAT in Kwik-Fit.The difficulty with such language (which is not a necessary element of the Court of Appeal’s judgment in that case) is that it wrongly gives the impression either that it is up to the recipient to decide whether there has been a dismissal/resignation or not (which cannot be right in the context of an objective test as to whether or not one party has unilaterally given notice) or that the issue for the Tribunal is not whether or not there has been a resignation/dismissal but whether the recipient has failed in his/her ‘duty’ to check whether there has. Neither impression is helpful. It seems to me, with all due respect to the earlier authorities, that it would be better to express the legal principles straightforwardly as principles that need to be applied by a court or tribunal when dealing with such cases. That can be done without doing any damage to the principles enunciated in the earlier cases.

With that very considerable preamble, the principles applicable to the construction of (putative) notices of dismissal or resignation in the employment context seem to me in the light of the authorities to be as follows:-

I turn now to consider the specific circumstances of the present appeal.

Although it is properly an argument as to how I should dispose of the appeal in the event I find there is an error of law, it is convenient to deal first with the respondent’s argument regarding the claimant’s acceptance, as recorded in paragraph 8 of the Tribunal’s decision, that he intended the words he used on 19 February 2020 to be understood as being his resignation and that the words were so understood by Ms Skinner. The respondent’s argument is that, if that was factually the position, then as a matter of law the claimant’s resignation on 19 February 2020 was a resignation, and effective immediately as such.

However, in the light of my analysis of the authorities as set out above, that is not how the law works in this context. For the reasons I have set out above, the question of whether an employee in the position of the claimant in this case has resigned is to be determined objectively from the perspective of the reasonable bystander viewing the matter from the employer’s perspective. The uncommunicated subjective intention of the employee is not relevant to the issue the Tribunal has to decide, although what the claimant said to his employer about his intentions in the relevant period after uttering the words of resignation will be relevant to the objective assessment. Likewise, what Ms Skinner subjectively understood is not determinative, although it is relevant evidence as it may assist the Tribunal in forming a judgment as to what the reasonable bystander would have thought. As such, the fact that the claimant agreed that he had in the moment intended to resign and been understood as resigning was not determinative. The claimant’s intention was irrelevant and the employer’s understanding was only relevant evidence and not determinative.

I now turn to consider Mr Harding’s arguments on behalf of the claimant. It seems to me that there are unfortunately material errors of law in the Tribunal’s approach in this case.

First, the Tribunal has not properly directed itself by reference to the principles that I have identified above. That is understandable given that there has not prior to this judgment been any case which has drawn together the principles as I have done in this judgment, but nonetheless the result is that the Tribunal in this case has not directed itself by reference to those principles. In particular, it has not directed itself by reference to what I have identified as the core question of whether, viewing the situation objectively from the perspective of the reasonable employer, the claimant not only used words that when construed in accordance with normal contractual principles constituted words of resignation, but also that objectively it would have appeared to the reasonable employer that the claimant ‘really intended’ to resign on 19 February 2020. Instead, the Tribunal at [24] asked itself whether there were here special circumstances that justified making an exception to the general rule. However, as I have explained above, there is no such thing as the special circumstances exception and the Tribunal erred in law in asking itself whether there were special circumstances that justified departure from the general rule rather than applying an objective test to determine whether it would have appeared to a reasonable employer in all the circumstances that the claimant ‘really intended’ to resign.

Secondly, it is well established that a Tribunal needs to give adequate reasons for its decisions and in order to do so it must make the findings of fact that are necessary to that decision: see, for example, Jocic v Hammersmith and Fulham LBC(UKEAT/0194/07/LA; HHJ Burke QC presiding) at [57], endorsing the views of the EAT(Judge Richardson presiding) in Peart v Dixons Store Group Retail Ltd(UKEAT/0630/04/1011). In the present case, the Tribunal has not made the findings of fact necessary to enable it properly to answer the core legal question. In particular, it has not made findings of fact about three crucial elements of the chronology:-

Thirdly, I need to say something about the Tribunal’s focus in this case on the question of whether the respondent had offered him an alternative role. While I would not go so far as to say that that issue was irrelevant to the matter the Tribunal had to decide (because the whole factual matrix is relevant in a case such as this), it is clear to me that this issue became an unfortunate ‘red herring’ in this case. If the claimant had resigned, then the offer of a new role was simply an offer of a new contract and not capable of affecting the status of his prior resignation. If he had not resigned, then whether or not the offer of a new role amounted to a termination of his then current contract would need to have been considered by reference to the principles discussed in the line of authority beginning with Hogg v Dover College[1990] ICR 39. Either way, consideration of whether the respondent had offered the claimant an alternative role was a side issue and could not assist much, if at all, with the question of whether he resigned on 19 February 2020.

None of the above should be taken as indicating that either party is more likely ultimately to succeed in this case. It is, it seems to me, a finely balanced case. I have considered the principles in Sinclair Roche & Temperley v Heard[2004] IRLR 763. This case was decided at a one-day hearing that took place over two years ago. It is unlikely the judge has a good recollection of it and in any event no time would be saved by remission to the same judge. Further, while I do not doubt the judge’s professionalism, the decision was substantially flawed and fairness requires in my judgment that the case be remitted to a fresh tribunal. The fresh tribunal will need to conduct a full rehearing, properly directing itself in law in accordance with the principles that I have identified in this judgment at [97] above, and making the necessary findings of fact to enable it properly to determine on which side of the fine line between ‘not really intending to resign’ and ‘intending to resign but changing his mind’ this case falls.

I add this further observation: it seems to me that this case was under-listed at first hearing and that may in part explain the deficiencies I have identified in the judgment. Six witnesses and an issue of this complexity merited more than a one day listing and it should be given a more generous allocation on re-listing.