Veitch Penny LLP - Exeter | Crediton, Devon

Case

Proctor v Glycosynth Limited
Employment Appeal Tribunal Judgment

Issues

(1)Constructive Dismissal
(2)Communication of claim
(3)Statutory dismissal procedure

Facts

In this case, the owner of Glycosynth had informed his staff of details of a pay rise given to the Claimant, Mr Proctor. Mr Proctor was angry about this disclosure and asked his employer for a meeting. A discussion took place in which the employer told Proctor that he was not a good manager. Proctor replied he would not be able to continue working after that comment and returned to his desk. He was followed by his employer who shouted “I thought you were leaving” and then said “go now, I don’t want you here, just get out and leave”.

Mr Proctor made a claim of both constructive unfair dismissal and unfair dismissal. In the course of evidence, Mr Proctor stated that he had not said that he was resigning. The Tribunal made a finding that Proctor’s words would indicate to a reasonable employer that he was going to resign. However, the Tribunal went on to find that there was no constructive unfair dismissal as there was no breach by the Employer of the implied duty of trust and confidence. Instead there was simply a slur on Proctor’s ability in a heated exchanged which could have been retracted when both parties had calmed down.

This left Proctor’s claim of unfair dismissal: Following the exchange, Proctor had in fact returned to work that afternoon to hand in a letter to his employer giving three month’s contractual notice. Proctor was again told by his employer that he could just leave. The Employment Tribunal had to consider whether this was sufficient to constitute a dismissal on the part of the employer.

Decision

The Employment Appeal Tribunal (EAT) found that the employer’s conduct that afternoon could be construed as a dismissal by the employer at the start of Mr Proctor’s period of notice. In the circumstances, his dismissal was unfair.

Comments

In most cases where an employee uses unambiguous words of resignation and the employer understands them as such, the correct conclusion is that the employee has resigned. However as in this case where the employee does not actually walk out, there is a real risk for the employer who insists they go immediately. Here, the Tribunal interpreted Proctor’s words to mean that he was resigning on notice so that the employer’s insistence on him leaving became a dismissal during the notice period. In such a case where an employer acts too hastily, there is a risk of finding automatic unfair dismissal with enhanced compensation being awarded to the employer due to the employer’s non-compliance with the statutory dismissal procedure.

Accordingly, when an employee resigns in the heat of the moment it is important that employers do not assume that the resignation was intended to have immediate effect. They should also ensure that the employees discuss the matter in a calmer atmosphere. If the employee subsequently provides an account of why they resigned in writing, then this must be treated as the first step under the statutory grievance procedure.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
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