Ms M Cation v Represented by: Mr D Cation,15 Husband Fife Council and 1 other — 2020

Ms Margaret Cation had worked for Fife Council since 1996 and was on unpaid leave and then a career break in 2018. After she was successful at interview for a post with Midlothian Council on 7 June 2018, she telephoned her line manager, Mr Derek Slater, and then sent an email headed "Resignation" stating that she resigned with effect from that day. The issue for the preliminary hearing was whether her employment with Fife Council ended on 7 June 2018, as the respondents said, or on 29 June or 1 July 2018, as the claimant contended, because that affected continuity of service and the timeliness of the claim.

The tribunal preferred the claimant's evidence about the telephone call. It found that she did not tell Mr Slater that she was resigning with immediate effect during that call, and that he instead told her to write to him using the word "resignation" to get the process moving while he would check the notice position and "sort everything out". It accepted that Mr Slater then checked with HR, was told no notice period was required in the no-pay situation, entered 7 June 2018 on the HR system, and shortly afterwards spoke to the new employer and agreed a start date of 2 July 2018. The tribunal also found that Mr Slater did not write to confirm acceptance of any resignation on 7 June 2018.

Applying section 97 ERA 1996 and the authorities it cited on resignation and notice, the tribunal concluded that the events of 7 June 2018 did not amount to an immediate resignation effective that day. It held that the notice of termination arose from the combination of the conversation, the email, Mr Slater's later discussion with Midlothian Council, and the agreed start date, and that the effective date of termination was 1 July 2018, the day before the claimant started with Midlothian Council. It rejected the claimant's proposed date of 29 June 2018.

Despite that finding on the effective date of termination, the tribunal held that the claim against Fife Council was time-barred. It found that it was reasonably practicable to start early conciliation much earlier than the claimant did, and that the claim was not presented within a reasonable period after she learned in August 2018 that continuity of service had not been preserved. The claim against Fife Council was therefore dismissed for want of jurisdiction, and the claim against Midlothian Council was allowed to proceed to a final hearing.