In Person For the v Ms S Ashraf (Consultant) — 2021

The tribunal found that Ms Whitney Horner orally resigned on 16 June 2020 in clear and unambiguous terms during the meeting with Ms Best. It accepted that the weekend email exchanges about leave approval, the request to confirm her address, and the reminder about the company’s other-employment provisions were the events she said upset her, but it held that those communications were not objectively repudiatory and did not amount to conduct entitling her to resign without notice under section 95(1)(c) ERA 1996.

In the alternative, the tribunal found that Ms Horner’s letter of 3 July 2020 was itself an even clearer resignation, even though it referred to one week’s notice. It also found that any later events, including the proposed welfare meeting by video and the job advertisement, post-dated the alleged first resignation and were irrelevant to whether there had been a constructive dismissal. Applying the approach in Western Excavating and the Kaur questions, the tribunal concluded that there was no repudiatory breach and no course of conduct amounting to a last straw.

Because the tribunal found that Ms Horner had resigned and had not been dismissed either expressly or constructively, the unfair dismissal claim was dismissed. The reasons record that section 98 ERA was not fully set out because dismissal had not been established.