Labour & European Law Review Weekly Issue 349 11 December 2013
The law states that a tribunal will not consider a complaint of unfair dismissal unless it is presented within a period of three months beginning with the effective date of termination (EDT). In The Secretary of State for Justice v Hibbert, the Employment Appeal Tribunal (EAT) said that the EDT was the date when the employee unambiguously stated that she was resigning from her job.
Ms Hibbert, who had had problems at work since the end of 2008, raised a grievance which was heard in February 2012 but which was not upheld. She appealed the decision.
After going on sick leave in June 2012, she was invited by the governor, Ms Howard, to a capability hearing on 26 June to discuss possible dismissal on the grounds of medical inefficiency. This was then postponed until 2 July to allow time for the grievance appeal to be decided.
Two days after the grievance appeal was rejected, Ms Hibbert hand-delivered a letter to the governor dated 29 June, stating that “there has been a fundamental breach of my employment contract ... and I have no alternative but to resign my position.”
Her employer replied on 3 July suggesting that she took a few days to reconsider her decision, but this was rejected in a letter from her solicitors dated 9 July. On 11 July Ms Howard replied stating that she accepted Ms Hibbert’s resignation and that her last working day would be 27 July.
Ms Hibbert lodged a claim for unfair dismissal more than three months after her resignation date of 29 June. She claimed that her employment ended on 27 July while her employer argued that it ended on 29 June.
Tribunal and EAT decisions
The tribunal held that although it was not clear when Ms Hibbert intended her resignation to take effect, there was no ambiguity as to the date of termination of her contract by her employer.
MsHoward's letter of 11 July letter had fixed the date of termination as 27 July, which was confirmed by the fact that they paid Ms Hibbert for the whole of July.
Relying on the case of Sothern v Franks Charlesly & Co, the EAT said that the words “I have no alternative but to resign my position” were unambiguous and had the same meaning as if she had said: "I am resigning now"
There was no question of Ms Hibbert making a decision in the heat of the moment or of being pressurised into a decision by her employer. The letter of 29 June 2012 was drafted by her solicitor or, at the very least, she wrote it having taken legal advice.
The fact that Ms Howard has said in her letter of 11 July that Ms Hibbert was required to give four weeks' notice (for which she was paid) had no legal effect.
As a matter of law, Ms Hibbert terminated the contract under which she was employed without notice as a result of her employer’s conduct on 29 June 2012. Her effective date of termination was therefore 29 June, meaning that she was out of time to bring her claim of unfair dismissal.