Assuming employee’s resignation was act of unfair dismissal

The case of Cope v Razzle Dazzle Costumes Ltd considered whether an employee who was treated as having resigned due to her ambiguous comments and actions, was unfairly dismissed. From 8 January 2017, the claimant was employed as a factory/supervisor cutter and had a good working relationship with the business owner (Mr Parker) and his wife, her manager (Mrs Parker).

In summer 2021, the claimant’s colleague resigned and alleged that the claimant was a bully, after they had fallen out at work. On 31 August 2021, the claimant was made aware of the bullying allegations, but refuted them, saying she hadn’t done anything to upset the colleague. She said that if she was made to work with them, she’d go on sick leave. Mr Parker said both employees were assets to the business and to remain professional; the claimant agreed to be supportive and stay committed to get through a difficult situation.

A few weeks later, she asked for a further meeting. During the meeting, the claimant threatened to resign if the situation wasn’t resolved, but Mr Parker reassured her that he would sort things out. The next day, she called the office in an anxious state to speak with Mrs Parker, but she was at an appointment so unable to take her call.

The claimant’s anxiety increased as a result, which was intensified by a leak to her stoma bag, so was visibly upset. She came into the office that afternoon and asked if Mrs Parker had returned yet, but she hadn’t. At this point, she placed her keys on the desk and said, “I’m done” with a hand gesture that indicated she “was finished.” The tribunal accepted that, at this stage, she was clearly upset and visibly shaking. 

She had three days’ holiday already booked to begin the next day, and it was common practice for her to leave her keys in the office before a period of leave. Despite this, Mrs Parker was informed of the situation when she returned from her appointment, and told that the claimant had resigned. Mrs Parker did not contact the claimant to understand if this was correct.

Later that week, the claimant submitted a fit note. Again, at this stage, she was not asked if she had resigned. A meeting was held 11 days later, during which the claimant apologised for leaving work on the day in question and asked to return. Only then did the Parkers tell her that they thought she’d resigned.

Mr Parker told the claimant it would cause problems to take her back but adjourned the meeting to consider the matter. Two days later, a further meeting took place, and Mr Parker informed her that nothing significant had changed or occurred which would change the situation. He stated that she had resigned, that her intentions to resign were very clear and she would not be allowed to return to work. As a result, she raised a tribunal claim for unfair dismissal.

The Employment Tribunal (ET) found that no reasonable employer could have considered her actions to be an act of unambiguous resignation and that it was insufficient to conclude she had resigned, especially since the Parkers hadn’t taken the simple step of asking her. The ET concluded that the employer had “grasped the opportunity” during a “troublesome situation” to get rid of her, so upheld her claim for unfair dismissal.