Resigantion and Redundancy

fizzywoo

Just wondering of anybody can give me some advice!

To set the scene! I am a teacher, working at a school for 12 years. New headteacher arrived in 1997 and made working life a misery. I was on maternity leave between September 2009 until June 2010. Since returning from maternity leave headteacher has made my life even more of a misery - many references to my ability to do my job now I have a baby. This came to a head in October and I have been signed off with work-related stress since (further complications involve me waiting for a back operation). I attempted to return to work in January - headteacher put many obstacles in my way and I was signed off again. This has all been reported to unions.

Now, for my predicament! I posted my resignation yesterday! I felt any return to the school was untenable and any union and local authority action was dragging on with seemingly little result. I spoke to a colleague yesterday evening, who informed me that the headteacher had met with her and the other member of my department to warn them that he would be announcing a 188 notice the next day (today!). I am still reeling in the irony!

I gather from the little research that I have done overnight (!) that there's nothing that I can do, as I have resigned voluntarily (even though I felt I had to resign!), to be able to benefit. I have contacted the union and looked in to procedural matters - my hope is that he has not followed the procedure correctly and that there may be something that I can do.

I am grateful to any of you who take the time to read this - I realise it has become a bit of an essay! Am hoping that somebody can give me any ideas.

Thanks

jazzyman01

First as a resignation you will have no leg to stand on in regard to redundancy. All the school has to do is accept your resignation which they obviously will do in the current circumstances.

However, you could try and claim constructive dismissal based on the history with the new head teacher. This is not easy to do because the onus is on you to show what he/she has done to make your life untenable at school. Dates of meetings, conversations, letters, witnesses etc are all helpful. If you have been liasing with your union and the school then this will be part of the record.

Please note that constructive dismissal is not easy to prove.

ableandy

Tempers can flare in the workplace, occasionally prompting employees to take hasty action, which they may later regret. So what should an employer do if an employee resigns after a bust-up with the boss, but then has a change of heart and wishes to withdraw their resignation? Case law shows that in a situation where this happens, the employer may face repercussions if it accepts the resignation at face value.

Q If an employee resigns after a bust-up with the boss, what right do they have to withdraw the resignation?

A The basic position is that an employee does not have the right to unilaterally withdraw their resignation once given. The employer is entitled to consider any such request made by an employee and may decide to allow the employee to retract the resignation. However, caution may have to be exercised if, in resigning, the employee used words or actions that are ambiguous, or the employee has unambiguously resigned, but has done so in the heat of the moment – possibly suggesting they have no genuine desire to leave their job.
The case of Kwik-Fit (GB) Limited v Lineham is authority for the proposition that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee's true intention. 'Special circumstances' may include particular pressures on the employee or the employee's personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.
If the resignation was in the heat of the moment and there are special circumstances, the employer should allow a cooling-off period to ascertain if any other matters arise to cast doubt on whether the employee really meant to resign. A reasonable cooling-off period may only be a day or two, but this will depend upon the facts of the individual case. If the employer fails to allow a cooling-off period and immediately accepts the resignation, then a tribunal may conclude that the employee had not in fact resigned, but was dismissed by the employer.

Heat of the moment - withdrawl of resignation


In Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156 Wood J said:

“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant (see Barclay). These we refer to as special circumstances. Where special circumstances exist it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is needed to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk.”

This authority has given us “heat of the moment” resignations and dismissals. Under the strict contract law position, an employee who bellows “that’s it, I quit” at his boss and stomps out of the factory, has resigned. Perhaps his boss yells back “good!” The employee could not then, according to contract law, cool off and change his mind. Not in employment law. The special circumstances mentioned above mean that in some cases resignation can be withdrawn – our angry employee might have bellowed “that’s it, I quit”, but during his drive home, knuckles white as a grips the steering wheel in rage, he may suddenly remember his mortgage, wife, children and re-think things. So he telephones his boss, explains he lost his temper, and that he is on his way back to work. He might well be successful in showing that his employment was revived by his change of heart.
This is a sensible rule, but has never come with hard and fast time limits attached. In Kwik-Fit Wood J described a reasonable period as “relatively short, a day or two”. A recent EAT case, Willoughby v C F Capital Plc [2010] UKEAT 0503_09_1307 has helpfully confirmed:

1. the doctrine applies equally to a heat of the moment dismissal as it does to a resignation I]although it would seem clear that each would require a different assessment as to what was reasonable[/I;
2. that a 14 day delay (even with Christmas in the middle) was far too long for special circumstances to exist.

James Medhurst has helpfully tied together an analysis of this case with the ruling of Roberts v West Coast Trains Ltd [2004] EWCA Civ 900, which gives the employer a right to unilaterally reinstate following an appeal, or even perhaps without one. This does, as he says, potentially alter the balance between employer and employee, as the former could always “cure” his heat of the moment dismissal by reinstating whereas the employee is stuck with his resignation.
It should always be remembered by employers that an offer of reinstatement, even if refused, can be tactically beneficial in reducing compensation to an employee who, it can be argued at the tribunal, has failed to mitigate his loss by taking up the offer.