In Cope v Razzle Dazzle Costumes Ltd the ET held that an employee who handed in her keys and said “I’m done” with a hand gesture did not resign.
Ms Cope was employed as a factory supervisor by Razzle Dazzle Costumes, a small manufacturing business. Ms Cope was accused of bullying after a fall out with a colleague. The owner of the business advised Ms Cope to “remain professional” towards her colleague to which Ms Cope agreed to be “supportive and stay committed”.
The next day Ms Cope was in an anxious state and tried to speak with the owner as she was upset with the situation but she was told the owner was not in the office to speak with her. Ms Cope then attended the office and was reported to be noticeably upset and anxious, which was heightened by a medical issue she was experiencing. A colleague told her the owner was still unavailable due to being at an appointment and in response Ms Cope put her factory keys on the desk, said “I’m done” with a hand gesture which suggested she was finished and walked out.
The colleague thought Ms Cope had resigned and informed the owners of this, who accepted this without clarifying the situation with Ms Cope. Ms Cope sent a text message to the owners that evening about wanting to speak to them and submitted a sick note the following day. Notwithstanding these actions being inconsistent with a resignation, the owners refused to let Ms Cope to return to work citing that they believed she had resigned, and they had accepted her resignation.
Ms Cope brought claims of unfair dismissal, wrongful dismissal, and disability discrimination. Razzle Dazzle Costumes argued that Ms Cope made it clear she “was done” and they reasonably interpreted her words and actions to mean she was resigning.
Ms Cope submitted that she was discriminated against, and her job was removed from her. The owners had taken back her colleague’s resignation previously but would not let her return to work.
The Tribunal acknowledged that a resignation does not have to be in writing, however it was held that the owners had relied upon the interpretation of a colleague and failed to check with Ms Cope herself. When Ms Cope contacted the owners about submitting a sick note, this was inconsistent with a resignation. The Judge said that the employer had taken the opportunity to dispense with Ms Cope, so they didn’t have to deal with the bullying allegations. The Tribunal found Ms Cope had been unfairly dismissed without notice.
Whilst the case confirmed the principle that resignations do not have to be in writing, notice does have to be clear and unambiguous. In this case, a statement that the employee “was done” coupled with a hand gesture was not enough to be clear and unambiguous and was further undermined by the submission of a sick note shortly after. In this case the employer should have sought to clarify the employee’s intentions, particularly as they were relying upon the account of another employee, to whom she may have been more candid than she would have been to her manager (or in this case the business owner).
Employers should also be aware that there are also often contractual requirements regarding the giving of notice (i.e. it needs to be in writing) so asking an employee to follow up any verbal resignation in writing will also help flush out any issues around intent. This also provides a useful checking process where verbal resignations have been made in the heat of the moment during a dispute. Whilst an employee that has resigned doesn’t have the right to unilaterally withdraw notice, employers should consider giving an employee the opportunity to do so in these circumstances, where a resignation may not be the intention when considering matters with a clear head.
For further advice please contact a member of the Employment Team.