The Employment Appeal Tribunal (EAT) has highlighted the importance of clarity when a disciplinary process is initiated during the notice period.
Facts:
The appellant, formerly employed by the respondent as a bus driver, was involved in an altercation with a bus controller on 12 January 2020. On 15 January 2020, the claimant decided to resign. The appellant's contract required one week's notice for resignation, meaning that it would expire on 22 January 2020.
On 17 January 2020, the respondent sent a letter to the appellant accepting the resignation, while stating that the appellant was contractually obliged to work a two-week notice period. Simultaneously, the respondent invited the appellant to a disciplinary meeting originally scheduled on 22 January 2020.
On the morning of 22 January 2020, the appellant telephoned the respondent to question the disciplinary hearing given his resignation. He requested time to find a union representative, and as a result, the disciplinary hearing was rescheduled to 27 January 2020. The appellant resolved to and did participate in the rescheduled hearing. At the conclusion of the hearing on 27 January 2020, the respondent summarily dismissed the appellant.
The Employment Tribunal (ET) concluded that the disciplinary hearing lacked jurisdiction to consider the appellant's unfair dismissal claim because his employment had already effectively been terminated on 22 January 2020, before the purported dismissal on 27 January 2020.
Decision:
The EAT allowed the appeal, finding that the ET had erred in law by failing to consider whether the appellant and respondent had reached an agreement on 22 January 2020 to postpone the resignation until the disciplinary process had been determined. The case was remitted to the ET to determine crucial factual issues.
The EAT reasoned that the appellant's agreement to submit to a disciplinary process that he asserted was inconsistent with his immediate resignation "very strongly suggests that he was agreeing that his resignation would be deferred". This interaction, which happened before the contract's potential expiry, was a relevant matter that the ET had failed to take into account.
The EAT reaffirmed the legal principle that a notice of termination can be withdrawn or extended, but this must be agreed upon by both parties before the contract terminates. Since the agreement to reschedule was reached on 22 January 2020, the EAT found it was necessary to determine whether, at that point, the parties implicitly or expressly agreed to postpone the termination beyond that date to allow the disciplinary process to conclude. If they had done so, the contract would have been alive on 27 January 2020, and the ET would have had jurisdiction.
The EAT rejected the idea that the respondent could unilaterally insist that the appellant stay past January 22, 2020, as any extension required the appellant's agreement.
Implications:
The primary implication of this case is that when an employee gives notice of resignation, and the parties engage in subsequent conduct that contradicts the expiration date, an ET must specifically investigate whether the parties either implicitly or expressly agreed to extend or postpone the contract's original date of termination. This case serves as a useful reminder that, where disciplinary processes continue during a notice period, the two parties should clarify whether the employment effectively continues beyond the expiry of the notice.
This case confirms that an employee's participation in a disciplinary process after their notice period has expired can be a strong indicator of a continuing contract. If an employee agrees to attend a hearing, and the employer agrees to hold it, this interaction can be interpreted as a mutual agreement to defer the resignation, effectively keeping the employment contract alive.
