On the eve of a formal disciplinary meeting at which an employee may be dismissed they resign. Notwithstanding that resignation the employer went on to dismiss the employee and a constructive unfair dismissal and discrimination claim was pursued at the employment tribunal. There was a claim of constructive unfair dismissal, but this was lodged out of time and the claim was struck out. There was however also a claim of discrimination (harassment and victimisation) which was the subject of the appeal.
I have previously considered the position on resignation/dismissal confusions previously but the recent decision in Simmonds-Plummer v London Borough of Hammersmith and Fulham (2022) involved precisely the situation in this post’s opening paragraph.
The timeline of the case is important to the case history:
- In 2016 the claimant worked on electoral registration. As some time prior to 2018 her employer had concerns that her work at that time had been tainted with electoral fraud.
- On 6 December 2018 the claimant was suspended pending the conclusion of the employer’s disciplinary investigation.
- A disciplinary hearing was scheduled for 27 December 2018 but a request for an adjournment was made by the claimant in order to allow her to exercise her right of accompaniment.
- The rescheduled meeting was set for 10am on 4 March 2019.
- At 9:21am, on 4 March (that is, 39 minutes before the meeting was due to start), the claimant emailed her employer resigning her employment with immediate effect.
- The claimant’s case is that this resignation was received at that time by four different managers. By contrast, the employer’s case was that it was unaware of the resignation as the email was caught in the authority’s email quarantine system and was released until 1.21am the following day on 5 March 2019.
- In the meantime, the employer proceeded to hear the misconduct case at 10am on 4 March in the claimant’s absence and (it said) oblivious to the resignation.
- At 10.57am on 5 March 2019 the claimant again emailed the resignation (it is unclear if that was while the disciplinary meeting was still in progress).
- The employer informed the claimant by a letter dated 3 April 2019 that she had been summarily dismissed.
- On 7 April the claimant responded to that letter disputing the dismissal on the basis that she had already resigned the employment over a month previously on 4 March 2019.
- On 23 August 2019 (out of time) the claimant submitted her employment tribunal claim.
- On 9 May 2020 the constructive unfair dismissal claim was struck out as out of time (not subject to appeal) and the discrimination complaints (even though also probably out of time) was struck out on the basis that they had no reasonable prospect of success.
Reading the judgment I notice this is a claim brought by the PTSC union and a key figure in this small outfit Mr J Neckles. Mr Neckles has what one can best say is an “interesting” history in employment tribunal litigation (just search the ET and EAT records, it’ll keep you busy for a long while). I think it is fair to say the way the case was conducted was not helpful to the claimant and PTSC is not a union I would encourage anyone to join.
It is an interesting question arising from the case as to whether, had the resignation not happened whether there would have been a viable unfair dismissal claim – I have no idea of the level or quality of evidence against her but I wonder whether the apparent failure of the employer to take any steps to understand why the claimant was absent would have given an arguable point.
It is nonetheless clear that on 5 March 2021, at the latest, over a month before actually purporting to dismiss the claimant, the employer was aware of the resignation and so the decision to dismiss the claimant from a role she no longer held is shambolic – one has to wonder what HR advice the employer received!
At the employment tribunal the judge read the ET1 as a complaint about the dismissal meeting of 5 March 2019 and the consequential ‘dismissal’ of 7 April 2019. Alert to the nonsense of the employer’s earlier position on dismissing an employee who was no longer an employee at the time the employment judge (understandably) surmised that since there had been a resignation over a month before the ‘dismissal’ the dismissal was non-existent and, on that basis, could not possibly be a detriment. And, since there was no actual detriment there could be no reasonable prospect of success in a discrimination complaint.
Whilst the employment judge was right on that point employment judge Burns had made the fatal mistake of not giving the reading the ET1 carefully and – it seems – making assumptions about the nature of the claims (no doubt not helped by the claimant’s failure to attend the ET hearing – despite two prior postponements!).
In the ET1 was a complaint (not especially clearly put, but there nonetheless) that after the resignation managers were aware of the resignation and that the employment had come to an end but nevertheless decided to pursue the misconduct allegation. Put this way the employer’s post-termination treatment was alleged to still be a detriment under the Equality Act (the Equality Act allows allegations of discrimination by former employers). In this way, the judge had fundamentally misunderstood the case and had not considered “the case at its highest”. This is not a case where there was no dispute of facts and the question of whether, for example, the employer did or did not know of the resignation before the 4 March 2019 meeting is material to whether there is a case of discrimination. In fact, although not raised in the judgment even aside from that question, the employer did know the day after the meeting of the resignation but made a decision to continue considering the matter until over one month later, on 7 April 2019 so that itself seems to be a potential post-termination detriment by still considering whether to dismiss a former employee.
Had the claimant attended the hearing, and been represented, I doubt the judge would have made the error that was made but the case has a fascinating factual background albeit I doubt the claimant has done herself any favours resigning when she did. Likewise, based on the judgment it nevertheless seems that establishing a prima facie case may be difficult.
It is, nonetheless, a good case to reiterate the difficulty in striking out discrimination cases (with good reason) where there are disputes of fact, especially where a claimant is not legally represented.
I guess is there’s a lesson to be learned from the case it is that if you have an ET hearing, you should attend it, and if you’re resigning 39 minutes before a disciplinary hearing and don’t have an immediate response follow that up email with a phone call.
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