MR M ALI v BIRMINGHAM CITY COUNCIL [2008] UKEAT 0313_08_2710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0313_08_2710Case No Appeal No. UKEAT/0313/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ALIAPPELLANTBIRMINGHAM CITY COUNCILRESPONDENT
Before
Mr Justice SilberDate 27 October 2008
[1]APPEARANCES For the Appellant MISS RACHEL CRASNOW (of Counsel) Instructed via the Bar Pro Bono Unit For the Respondent MR JONATHAN MEICHEN (of Counsel) Instructed by: Birmingham City Council Legal Services Department Ingleby House 11-14 Cannon Street Birmingham B2 5EN B2 5EN SUMMARY UNFAIR DISMISSAL: Dismissal/ambiguous resignation 1. The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision. 2. He confirmed that he wished to resign but he later sought to change his mind. 3. The claimant claimed that he had been unfairly dismissed. 4. The Employment Tribunal held that the claimant had resigned and therefore no claim could be brought for unfair dismissal. 5. The claimant appealed contending that that there were special circumstances which existed in this case which showed that he had not validly resigned and that he could bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278 as he resigned in the heat of the moment. Held; The Employment Tribunal were correct to hold that this was a valid resignation and that the claimant could not bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278 THE HONOURABLE MR JUSTICE SILBER I Introduction Mr Mohammed Ali ("the claimant") was employed by Birmingham City Council ("the respondent") as a data entry clerk with effect from 7 November 2005. By a letter dated 25 April 2007 the claimant handed in a written note of resignation on that day but he subsequently sought to withdraw his resignation. The claimant brought a claim for unfair dismissal but the decision under appeal is the Employment Tribunal held that the claimant had resigned and that therefore it had no jurisdiction to hear his claim for unfair dismissal.[2]The issue which Mrs Justice Cox permitted to go to a full hearing was whether the resignation of the claimant was validly withdrawn. Mr Justice Burton considered that the claimant's first knowledge of appeal had no reasonable prospects of success. The claimant then issued a second notice of appeal which was considered by His Honour Judge McMullen QC to have no reasonable grounds of success. Following a hearing of the claimant's application under rule 3(10) of the Employment Appeal Tribunal (Amendment Rules) 2001 and 2004 , the claimant's appeal was then set down for the present full hearing. On the hearing of this appeal, the issue was whether the resignation had been validly withdrawn with the result that the claimant could bring the present claim.[3]The facts found by the Employment Tribunal relating to his resignation were that:-(a) On 25 April 2007 at around 14.45 the claimant handed his resignation to his manager Miss Sandra Espeut which he said in his witness statement was due to personal circumstances as, in his words, he was:- "under pressure, stressed out and couldn't think straight and was not fully aware what I was doing at the time. My resignation did not have anything to do in regards to my work";(b) The written resignation, which was signed by the claimant, stated that:
"I Mohammed Ali hereby resign at 14.40 on 25 th April 2007 in presence of Suki, Gail and Naila. I forward my resignation to Sandra Espeut the team leader" (c) Miss Espeut explained to the claimant that she would need to take Human Resources advice and she asked the claimant to wait in the reception area while she did so. Having received advice from Human Resources, Miss Espeut offered the claimant a cooling-off period to reconsider his decision. She had however been advised that she could not prevent the claimant from leaving with immediate effect if he wished to do so; (d) Miss Espeut then asked the claimant whether he would reconsider the decision but he reaffirmed his decision to resign. She then left him for a period of approximately 20 minutes to reconsider his decision. Her evidence was that when she returned, the claimant appeared to be getting upset and so she asked him whether he wanted her to leave the room so that he could give his decision some more thought; (e) After about 10 minutes, the claimant asked Miss Espeut to return to the room and he confirmed that he wished to resign with immediate effect. Miss Espeut told him that she would accept his decision; (f) Miss Espeut then discussed with the claimant the fact that he would have been paid until the end of the month. It was agreed that he would take the Thursday and Friday (26 and 27 April 2007) as annual leave and the claimant then added to his resignation note the following words "
I have requested two days annual leave therefore my resignation will start on Monday 28 April" . The following Monday was in fact 30 April 2007 and not 28 April 2007; (g) There was a dispute between Miss Espeut and the claimant as to whether Miss Espeut had offered and the claimant had accepted a two day cooling off period. The Employment Judge preferred the recollection of Miss Espeut as the claimant acknowledged that he was in a distressed state on 25 April 2007. In addition, the first time when the claimant asserted that he was offered a two day cooling off period was in his witness statement. The Employment Judge noted that the assertion of the claimant did not appear in his claim form nor in the claimant's grievance and it was therefore not accepted as being accurate; (h) Miss Espeut gave " clear " evidence that she had given the claimant a number of opportunities to reflect but he was adamant that he wished to leave. Miss Espeut then took the claimant's fob key and she escorted him from the premises; (i) On Friday 27 April 2007, the claimant telephoned Human Resources and he spoke to Miss Ross. There was a dispute about the telephone call but the Employment Judge preferred her recollection which was that she advised the claimant that notice periods are a minimum of 1 month but that they could be reduced by mutual agreement. Miss Ross recalls that the claimant was persistent in wanting to know what his " rights " were and she advised the claimant that as he had effectively resigned, he did not have an automatic right to return. During the conversation the claimant said that he wanted more time to think; (j) The claimant sent an email to Miss Espeut at 20.35 hours on 29 April 2007 which she did not see until she attended work on Monday 30 April 2007. The email stated that:
"I'm extremely sorry for handing in my resignation on Wednesday. I wasn't thinking straight and I know what I have done was wrong and very irresponsible. On Wednesday I was extremely stressed out, due to some personal circumstances and didn't know what I was doing. It was a moment in which my mind went totally blank. At that moment it seemed like I was doing the right thing, I needed a break and could not think clearly"; (k) The claimant then asked that he be given a chance to put things right but unaware of the email Mr Vaughan, the respondent's Director of Human Resources wrote to the claimant on 3 May 2007 in which he confirmed that the claimant's resignation had been accepted with effect from 30 April 2007; (l) On 4 May 2007 the claimant sent a further email to Miss Espeut which stated that: "
I have requested to cancel my resignation on Sunday 29 April by email. As I have not heard anything from you since our Monday 30 April 2007 conversation I will be going back to work on 8 May"; (m) Miss Ross replied on 4 May 2007 stating that: "I have to advise you however that a decision has been made not to reinstate your contract and your resignation therefore still stands".[4]As the claimant contends that he was unfairly dismissed, it is necessary for him to prove that he was dismissed. Section 95 of the Employment Rights Act 1996 sets out the different circumstances which an employee is dismissed and it states:
"(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)… (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"
. II The submissions[5]Miss Rachel Crasnow counsel for the claimant contends that:(a) that in the special circumstances which existed in this case, there was no real resignation by the claimant ("Issue A") (see paragraphs 7 to 20);(b) the respondent failed to provide the claimant with a reasonable opportunity to reflect and the respondent failed during this period to adequately investigate the circumstances of his resignation("Issue B") (see paragraphs 21 to 28 );and(c) the Employment Tribunal failed to conclude that the claimant had rescinded his resignation before it had been accepted by the respondent who subsequently dismissed him ("Issue C") (see paragraphs 29 to 31).[6]Miss Crasnow realistically accepts that in the light of the resignation letter of 25 April 2007 (which I set out in paragraph 3 (b) above) the claimant will be unable to rely on issues (b) and (c) unless she is successful in showing in respect of issue A that special circumstances existed which meant that there was no real resignation. Thus it is common ground that unless the claimant succeeds on issue A, the appeal must be dismissed. III Issue A In the special circumstances which existed in this case, was there no real resignation by the claimant?[7]Miss Crasnow submits that special circumstances existed when the claimant purported to resign which meant that there was no real resignation and that the Employment Tribunal erred in finding that the claimant did not bring himself within the exception to the general rule in Sothern v Franks Charlesly & Co [1981] IRLR 278.[8]In that case, the claimant employee had said at the end of the meeting that " I am resigning " but on the following day she decided that she would be staying on. The Industrial Tribunal held the words used which were " I am resigning " were in the circumstances of that particular case ambiguous so that a reasonable employer would not have interpreted the words as a resignation in the circumstances of the case. The Employment Appeal Tribunal upheld that decision but the Court of Appeal held that the words were unambiguous and they amounted to an effective resignation but Miss Crasnow relies on the statement by Fox LJ (with whom Stephenson LJ and Dame Elizabeth Lane agreed) that:- "21. Secondly this is not a case of an immature employee, but a decision taken in the heat of the moment, or of an employee being jostled into a decision by the employers".[9]In this case, the claimant contended that he had resigned in the heat of the moment and so what would otherwise have been a clear and unambiguous resignation could not be relied upon by the respondent as having that effect.[10]Having heard the evidence the Employment Judge explained that:-"27. The letter written and signed by the claimant on 25 April 2007 contained unambiguous words of resignation. It was not prompted by any action on behalf of the respondent. Ms Espeut very properly gave the claimant an opportunity to reflect. She left him alone to do that. Despite having that opportunity the claimant asserted that he wished to resign. The only accommodation then made was to treat the following 2 days as annual leave to avoid the potential of a reclaim of overpaid salary.28. In this case the claimant used unambiguous words of resignation. He persisted in his desire to resign even after given an opportunity to reflect. Whilst the claimant was clearly distressed by outside events he took no step to attempt to reverse his decision until 27 April. Even then he was asking for further time to reflect. It was only on the evening of Sunday 29 April that he requested that his resignation be rescinded. The claimant has not brought himself within the exceptional circumstances identified in Sothern and accordingly he was not dismissed..."[11]Quite correctly in my view it is not suggested by on behalf of the claimant that any of the reasoning of the Employment Tribunal was perverse but rather that it demonstrated an error of law. I am unable to agree because it is clear that:(a) the Employment Tribunal considered whether this was as the claimant claimed in his submission to the Employment Tribunal that this was a case of a resignation tendered in the heat of the moment;(b) there was no evidence that he acted in the heat of the moment when he gave in his resignation;(c) in any event, the claimant persisted in his desire to resign after he had been given an opportunity to reflect. As I have explained Miss Espeut gave the claimant an opportunity to reconsider his decision after she had gone to see Human Resources for advice when she had been given the resignation note. Nevertheless, the claimant reaffirmed his decision to resign and he was then left alone first for a period of 20 minutes then for a further period of 10 minutes in a room of his own before he asked Miss Espeut to return. The claimant then again confirmed that he wished to resign. Pausing at that point, this shows that this was a sustained decision by the claimant to resign and so this was far from being an impulsive decision made and implemented in the heat of the moment.(d) In any event the claimant had further time to reconsider and the Employment Tribunal accepted Miss Espeut's " clear evidence that she had given the claimant a number of opportunities to reflect but he was adamant that he wished to leave " [13]. This again provides adequate support for the contention that his decision to resign was neither made nor implemented in the heat of the moment; and(e) The claimant did not ask for his resignation to be rescinded until the evening of the 29 April at 8.35pm which was more than four days after he had put in his resignation. During that whole period either by his positive conduct or by failing to inform the respondent otherwise, the claimant was indicating clearly that he wished to resign.[12]In my view, the Employment Tribunal had before it an extremely strong case to support the conclusion that there was a clear decision by the claimant to resign which was not " a decision taken in the heat of the moment ". Indeed I would go so far as to say that if an Employment Tribunal had held the facts of this case showed that this was a resignation " taken in the heat of the moment " it might well have reached the threshold of being perverse.[13]I am fortified in coming to that conclusion by subsequent statements which show the very limited nature of the exception set out in the Sothern case on which the claimant relies so strongly.[14]The limited nature of the exception on which the claimant relies has become apparent from two later cases. In Sovereign House Security Services Ltd v Savage [1989] IRLR 115 May LJ (with whom Croom-Johnson and Woolf LJ agreed) explained (with my emphasis added) that:- "7. In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ".[15]I pause at this stage to say that is exactly the approach which was adopted by the Employment Tribunal in this case. In the Sovereign House case, May LJ proceeded to say:- "7…However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what might appear to be at first sight".[16]The Employment Tribunal in this case did not find any of those factors present and there can be no challenge to that finding.[17]In Greater Glasgow Health Board v Mackay [1989] SLT 729 the Court of Session had to consider whether an employee, who wrote out a letter of resignation, had actually resigned in the light of the special state of anxiety of the employee when he wrote that letter. The facts of that case were very different from the present case but it is of significance that Lord Wylie said (with my underlining added) at the end of his judgment that: "where possible exceptions to a general rule are suggested in obiter dicta such as that used in the case of Sothern , there may be a tendency for tribunals to apply the exception to the rule rather than the rule itself and I wish to emphasise that only in highly exceptional circumstances will this be justified.".[18]In this case the Employment Judge as the fact-finder decided that the special factors did not apply. He explained in paragraph 28 of the Reasons that: "the claimant has not brought himself within the exceptional circumstances identified in Sothern and accordingly he was not dismissed[19]For all those reasons, this case does not fall within the exception to the general rule in Sothern . For the purpose of completeness I ought to stress that although the claimant disagrees with the factual conclusions of the Employment Tribunal his only way of successfully challenging its decision is by showing an error of law but, as I have explained, his case fails on this issue.[20]As I have explained Ms Crasnow correctly accepts that if this case does not fall within the exception to the general rule in Sothern the unequivocal words used in the resignation note of 25 April 2007 means that she cannot rely on her second and third grounds. Although those issues are now of only academic interest, I will consider them as I heard full submissions on them. IV Issue B. Did the respondent fail to provide the claimant with a reasonable opportunity to reflect and did the respondent fail during this period to adequately investigate the circumstances of his resignation?[21]The case for the claimant is that the respondent had by its actions accepted that the claimant's unambiguous words were not to be accepted at face value. It is said that the relevant actions of the respondent were those set out in paragraphs 3 (c) to (e) above which were first giving the claimant 20 minutes to consider his position, second noting the claimant's upset frame of mind and third later giving the claimant 10 minutes to consider whether he wished to resign.[22]The case put forward by Miss Crasnow is that the Employment Tribunal nevertheless failed to recognise that the respondent itself was under a duty to consider what the continuing and true intention of the claimant was. Indeed the case for the claimant is that the Employment Tribunal ought to have specifically considered what was a reasonable amount of time for the respondent to allow to elapse before accepting the resignation of the claimant. According to the claimant, the Employment Tribunal ought to have appreciated that Miss Espeut gave the claimant no more than 30 minutes in total on the respondent's evidence to consider his position. Miss Crasnow submits that if the Employment Tribunal had applied the law correctly, it would have reached the conclusion that this was insufficient time for the claimant to consider his position. She seeks to fortify this point by pointing out that on 25 April 2007 the claimant was asked to take the next two days as annual leave with the result that it would have been appropriate for the respondent to have allowed the claimant a further cooling-off period but that the Employment Tribunal erred in not giving the claimant a longer period.[23]In response the respondents point out that both employee and employer are entitled to some finality in respect of a clearly stated intention to end an employment relationship. This finality was reached on 25 April 2007 after the claimant had been given many opportunities to reconsider his position by Miss Espeut as I have explained in paragraph 2 (c) to (h) above.[24]In my view the Employment Tribunal did consider this point properly when it stated (with my emphasis added ) in paragraph 27 of its Reasons that:- "Ms Espeut very properly gave the claimant an opportunity to reflect. She left him alone to do that. Despite having that opportunity the claimant asserted that he wished to resign". In my view the use of the words "very properly" indicates that the Employment Tribunal did consider that the claimant had been given a reasonable period of time.[25]Even if special circumstances did apply, which I have upheld was not the case here, the approach explained by Wood J in Kwik-Fit (G.B.) Limited v Lineham [1992] ICR 183 that:- "where special circumstances arise it may be unreasonable for an employer to assume a resignation and accept it forthwith".[26]The Employment Appeal Tribunal in that case then went on to say what an employer should do which was 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 inquiry is ignored at the employer's risk".[27]In paragraph 23 of the judgment in the Lineham case it is said that a reasonable period of time is identified as "likely to be a day or 2".[28]In conclusion I do not consider that there is any merit in this contention of the claimant because not only do special circumstances not exist but in this case the respondent had in the words of the Employment Tribunal " very properly " given the claimant an opportunity to reflect and that in the words of paragraph 28 of the Employment Tribunal's Reasons " he persisted in his desire to resign after being given an opportunity to reflect ". V Issue C Did the Employment Tribunal fail to conclude that the claimant had rescinded his resignation before it had been accepted by the respondent who subsequently dismissed him?[29]Miss Crasnow contends that the Employment Tribunal failed to apply itself to the question of whether the resignation on the 25 April 2007 was capable of being rescinded before it was accepted. It is said by her that the Employment Tribunal had evidence that the claimant had asked for more time on 27 April 2007, which was less than 2 days after his resignation and also during a period of annual leave and that in addition he had then requested that his resignation be rescinded on 29 April 2007.[30]I agree with the respondent that there is a factual error in that submission because the resignation of the claimant was in fact accepted on 25 April 2007. After all, it was then after having given the claimant ample opportunity to reflect, Miss Espeut told the claimant that she would accept his decision because after he had been given a number of opportunities to reflect the claimant was " adamant that he wished to leave ". Following this, she then took the claimant's fob key and escorted him from the premises.[31]Those facts are a complete answer to this criticism made by the claimant. In any event there was no attempt made by the claimant to rescind his resignation before sending his email on 29 April 2007. On the assumption contrary to my finding that this was a case of special circumstances, the parties are then only allowed a short space of time to retract their actions which as I have explained in the Lineham case, it was said that it was "likely to be a day or 2 " . Thus in any event the claimant's actions were outside the time period. I stress that this ground falls not only for that reason but also because special circumstances do not arise. VI Conclusion[32]I agree with Mr Meichen for the respondent that this appeal must be dismissed. The Employment Judge considered the case carefully and properly before reaching a decision which shows no arguable errors of law. It might be some consolation for the claimant to know that Miss Crasnow has put forward every argument available to her with commendable skill. Nevertheless this appeal has to be dismissed for the reasons which I have sought to explain.