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Release from work does not amount to a dismissal

The recent decision of the Scottish Employment Appeal Tribunal in Tom Findlay & Co. Ltd v Mrs M Devlin UKEATS/0071/06 provides a useful reminder of two key points in relation to resignation by an employee:

1. An employee who submits a resignation on proper notice is not entitled to withdraw it. In tendering their resignation an employee is asserting a right – they are not making an offer which needs to be accepted before it can be effective.
2. When, following such resignation, the employer hires a replacement who is available to start work before the notice period has expired, putting an employee on “garden leave” does not amount to a dismissal.

Mrs Devlin resigned after difficulties arose in her relationship with one of the directors of the Respondent, Findlay. Although her contract required only four weeks notice, she gave 12 weeks notice in her letter of resignation with the effect that her employment would come to an end on 25 November 2005. Having found a suitable replacement for her, Findlay wrote to Mrs Devlin on 7 October 2005, advising her that although she would be paid until 25 November 2005, she would be “released” from work from 21 October 2005. Mrs Devlin claimed unfair dismissal and the Employment Tribunal ruled in her favour.

The Employment Appeal Tribunal allowed Findlay's appeal. It held that Mrs Devlin, in common with all employees, had the right to bring her contractual relationship with Findlay to an end provided she gave sufficient notice. Therefore, resignations tendered in accordance with the employee’s contract are not offers which require acceptance; they are simply instances of an employee asserting a right which exists under the contract. Mrs Devlin’s resignation letter gave clear and unequivocal notice that she was tendering her resignation so as to bring the contract to an end on 25 November 2005, no other date was agreed and the contract therefore terminated on that date. Findlay’s letter of 7 October did not bring the contract to an end, it merely ended Mrs Devlin’s obligation to attend work, and so there was no dismissal. The appeal was therefore upheld and the claim dismissed.

While decisions of the Scottish EAT are not binding in England and Wales, it is unlikely that a Tribunal would decline to follow the decision.

For further information, please contact:

Simon Jeffreys Partner, Employment London +44 (0) 20 7367 3421

Alison Woods Solicitor, Employment Aberdeen +44 01224 267176