Mrs J McElhinney v Service Feature Ltd (T/a Family Bakers): 2406299/2023

EMPLOYMENT TRIBUNALS

Case No 2406299/2023

Between

Mrs J McElhinneyClaimant

Service Feature Ltd (T/a Family Bakers)Respondent

Before

Judge Callan

Mr. A. McElhinney (husband (instructed by claimant)) for claimant

Ms. L. Mistry (daughter (instructed by proprietor)) for respondent

Date 20 September 2024

JUDGMENT

[1]The judgment of the Tribunal is that the complaint of unfair dismissal is not well-founded. The respondent did not dismiss the claimant and she left the respondent’s employment voluntarily. This means that her claim for unfair dismissal fails. _____________________________ Judge Callan Date_20 September 2024_________

[2]JUDGMENT SENT TO THE PARTIES ON 26 September 2024 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

REASONS

[1]The claimant was employed as a supervisor/manager at the respondent’s bakery/cafe from 23 February 1989 until 19 May 2023 when she alleges she was dismissed.

[2]The respondent denies it dismissed the claimant. They say that she resigned voluntarily.

The Issues

[3]The issues the Tribunal will decide are: Case No. 2406299/2023 2(1) Was the claimant dismissed? The respondent denies dismissing the claimant. The claimant relies upon the words used in her message to the respondent.

(2) If the claimant was dismissed, what was the reason or principal reason for dismissal?

(3) Was it a potentially fair reason?

(4) Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?

(5) If the claimant succeeds in any of her claims, how much should she be awarded as compensation for her losses?

Evidence

[4]The claimant gave evidence on her own behalf, and was supported by evidence given by her husband, Mr. Andrew McElhinney. On behalf of the respondent, I heard evidence from Mr. Andrew Neal. I was also provided with a bundle of 270 pages plus appendices, and I read those documents referred to by the parties in addition to the claim and response forms. Facts

[5]The claimant was employed by the respondent as supervisor/manager from 23 February 1989 to 19 May 2023 at its premises at Thornton-Cleveleys. 6. The respondent employed 16 employees. 7. The claimant was allocated to the role of supervisor/manager. 8. On 23 April 2023, the claimant sent Mr. Andrew Neal (owner of the business) a WhatsApp message at 11.39.50 stating “I will leave a notice on your desk tomorrow 4 weeks notice thanks”. No notice was left on Mr. Neal’s desk. He was at this time away from the business on holiday. However, he responded to Mrs. McElhinney’s WhatsApp message at 23.04.23 with a message stating “Hi Regarding your notice I have sent you an email. Please can you respond to the email at the earliest opportunity.” Mrs McElhinney did not open the email which had been sent with the subject title “Resignation Acceptance”. Mr. McElhinney told his wife not to open the email but to speak to Mr. Neal on his return. She responded on 24 April 2023 at 11.21 and said “Thanks for your response. I will discuss any issues I have when you return.” 9. The claimant’s evidence was that she did not open the email and only became aware of its contents on 4 May 2023 when she was handed a copy of it by Mr. Neal who had returned to work that day from his holiday. The letter had been pre- Case No. 2406299/2023 3 prepared and put the claimant on gardening leave from that day to the end of her employment on 19 May 2023. 10. Mr. Neal’s evidence was unclear as to why he felt it was necessary to put the claimant on gardening leave. She was a long-standing employee with 34 years service and had been close to the family of Mr. Neal for a number of years. It was perplexing why there should be no marking of her long service had she merely resigned – no card, cake or party, for example. However, this is not the test I have to apply – it is a narrow legal issue: who brought the contract to an end and the burden of proving it was the respondent rests on the claimant. 11. On 10 May 2023, the claimant emailed the respondent to state “The 4 weeks notice I refer to in my WhatsApp message sent on Sunday 23 April 2023 was to put you on notice to discuss my role as supervisor/manager, namely the day to day duties and responsibilities. You will note I have not said notice to resign from my employment and I attended my shift as normal on Monday 24 April 2023. I request that you(1) reinstate my employment with Servicefeature Ltd and

(2) afford me the opportunity to discuss my role as supervisor/manager.” 12. Mr. Neal responded to that letter on 13 May 2023 stating “We received your 4 week notice to terminate employment on 23 April 2023, which was accepted in writing, setting out terms of pay and details of notice your period [sic]. You acknowledged receipt of this correspondence on 24 April. At no point from 23 April, including at our meeting on the 4th May, when you accepted gardening leave in lieu of working your notice have you asked to discuss your role as supervisor or implied any other meaning to your message, other than resigning.” 13. In a WhatsApp message to a friend and ex-colleague, Paul Woodhouse, around early May 2023 (probably the 6th) the claimant stated “I told Andrew I was leaving by text.” 14. The respondent denies it dismissed the claimant. They say that she resigned. Relevant Legal Framework

[15]Where dismissal is denied by the employer, it is for the employee to show that they were dismissed, either expressly or in circumstances where they were entitled to resign and claim unfair dismissal. Section 95 of the Employment Rights Act 1996 (ERA 1996) provides:(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if) - (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) – [does not apply], or Case No. 2406299/2023 4 (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

(2) – [does not apply]

(3) Notice to terminate a contract of employment can be given verbally or in writing. Notice, however given, must be expressed to the other party in clear terms to communicate that the right to terminate the contract is being exercised and when it is intended the contract will end (Societe Generale London Branch v Geys, SC,

[2013] IRLR 122

and Gidsda Cyf v Barratt, SC,

[2010] ICR 1475

). 16. In respect of notice given by either party “in the heat of the moment”, the Employment Appeal Tribunal (EAT) decided in Martin v Yeoman Aggregates Ltd.

[1983] ICR 314

that where either an employer or an employee has spoken words in the heat of the moment, they should be given the opportunity of retreating from the words used in haste. However, if the resignation has been given otherwise than in the heat of the moment, then it will stand as a valid resignation and the employment tribunal will lack jurisdiction to hear the employee’s unfair dismissal claim (Ali v Birmingham City Council, [2008]

UKEAT/0313/08

). 17. The case of Sovereign House Security Services Ltd. v Savage

[1989] IRLR 115

established that generally, where unambiguous words of resignation are used by an employee and are so understood by the employer, the proper conclusion of fact is that the employee has resigned and Tribunals should not be astute to find otherwise. In some cases, however, there may be something in the context of the exchange between the employer and the employee, or in the circumstances of the employee himself, to entitle the Tribunal to conclude that notwithstanding the appearances, there was no real resignation despite what it might appear at first sight (for example, decisions taken in the heat of the moment). 18. The Court of Appeal in the case of Willoughby v CF Capital plc

[2011] IRLR 985

dealt with what it termed “special circumstances” exception from the general rule that a notice of resignation or dismissal (oral or in writing) has effect according to the ordinary interpretation of its terms. Once notice is given, it cannot be withdrawn except by consent. The “special circumstances” exception is that the recipient of the notice must be satisfied that the giver really did intend to give notice of resignation or dismissal where there is a doubt as to whether he really did intend to give notice. The Court held that “the need for such a so-called exception to the rule will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted”. 19. If it is established that special circumstances apply, the EAT in Kwik-Fit (GB) Ltd v Lineham

[1992] ICR 183

held that “A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can be properly assumed then such enquiry is ignored at the Case No. 2406299/2023 5 employer’s risk.” The EAT were of the view that such a period would be relatively short, perhaps a day or two.

Discussion and Conclusions

[20]The claim turns on whether the claimant was dismissed or resigned in circumstances which fall within “the special exception” identified in the caselaw. Otherwise, if the claimant simply resigned, the tribunal lacks jurisdiction to determine the claim of unfair dismissal (see above).

[21]In evidence, the claimant categorically denied that she had resigned her employment and had intended merely to relinquish the managerial/supervisory duties. The notice mentioned in her WhatsApp message, she says, was merely notice of her wish to discuss this with the respondent. She was clear that the respondent had expressly dismissed her.

[22]The claimant had never previously had to arrange a meeting to discuss such changes, still less to give a notice of such a change.

[23]The claimant did not approach the respondent about the possibility of continuing her employment until 10 May 2023. In my judgment, this is longer than the “a day or two” that is suggested in the leading cases for an employee to reconsider their decision to resign, In my judgment, the burden being on the claimant, the words relied upon in her claim (“I will leave a notice on your desk tomorrow 4 weeks notice thanks”) did not amount to an intention to resign the next day but were words of her present intention to do so.

[24]Taking what the claimant said in the WhatsApp together with what she reported had been her intention to her colleague, and the fact that, on the balance of probabilities, she saw the title of the email on her phone and took the advice of her husband not to open it, make it more likely than not that she resigned on 23 April 2023 and attempted to resile from that on 10 May 2023. On the balance of probabilities therefore I find that she resigned voluntarily..

Conclusion

[25]Given my findings that the claimant was not dismissed, nor is to be taken as to have been dismissed, her claim of unfair dismissal must fail. _____________________________ Judge Callan Date: 14 November 2024 Case No. 2406299/2023 6