Smith v Church of Jesus Christ of Latter-Day Saints (Great Britain) ET/2407936/10
Date added: 27 June 2011
resignation or dismissal | religion
In this unusual case, a Mormon claimed that he was forced to resign from his Mormon Church-related position after he was excommunicated for engaging in extramarital sex with a member of the church.
An employer wishing to offer an employee the option of resigning rather than facing disciplinary proceedings must be careful. The company in this case handled the matter perfectly, putting no pressure on the employee to resign, and taking care not to prejudge the outcome of the disciplinary procedures.
Where an employee attempts to retract his or her resignation, there is no obligation on the employer to accept it. However, if the resignation was made in the heat of the moment, or if the employer put pressure on the employee to resign, a tribunal may find that the real reason for dismissal was termination.
Mr Smith was employed by the Church of Jesus Christ of Latter-Day Saints (Great Britain), which is a company incorporated for the purpose of furthering the objectives of the Mormon Church. All of the company’s employees are members of the Mormon Church, and Mr Smith’s contract provided that he had to be worthy of a “temple recommend” to remain in employment.
The church’s policies and procedures provide that any employee who is excommunicated from the church will be “terminated from Church employment”, and the company’s disciplinary procedure states that a failure to comply with “Church worthiness standards” constitutes gross misconduct. Sexual activity outside marriage is well known by members of the church to be unworthy conduct. As a former Bishop of the church, Mr Smith was aware of the disciplinary procedures and the possible consequences of a failure to maintain the standards required of church employees. He knew that extra-marital sex was likely to result in dismissal.
Around March 2010, Mr Smith, after separating from his wife, engaged in sexual intercourse with a female member of the church, outside marriage. Through unspecified means, the church became aware of this and excommunicated Mr Smith on 1 July 2010.
Mr Smith had considered resigning before the meeting of 1 July and, on 2 July, telephoned Mr Lucas (HR officer) to ask what his excommunication would mean for his employment, and what his options were. Mr Lucas informed him that the company would need to follow its disciplinary procedure, but agreed to explore possible alternatives. Mr Lucas agreed with Mr Smith’s line manager, Mr Whitehead, that they would offer him the opportunity to resign and receive three months’ pay in lieu of notice.
Later on 2 July, Mr Lucas telephoned Mr Smith to inform him of the option of resigning and receiving pay in lieu of notice. He did not say that Mr Smith’s dismissal was a certain outcome, but explained that any dismissal would likely be without notice. The conversation was amicable.
That morning, Mr Smith also spoke with Mr Whitehead on the phone. Mr Whitehead gave evidence in the tribunal hearing that, at that time, he felt that he would need to suspend Mr Smith and begin disciplinary proceedings, but did not discuss this with him. Mr Whitehead confirmed to Mr Smith the option to resign, and confirmed that he and Mr Lucas would visit late that afternoon. During this conversation, a colleague of Mr Smith, Mr Teal, who had come over to support him, gave him a piece of paper with the words “take the money” written on it. He was not acting on the company’s instructions, and believed that the offer presented to Mr Smith was a good one.
During their conversations with Mr Smith, neither Mr Lucas nor Mr Whitehead used the explicit words “resign or be dismissed”. Late in the morning on 2 July, Mr Smith decided to resign, and tendered his resignation by email at 11.23am, which Mr Whitehead accepted. Later that day, there was an amicable meeting between Mr Smith, Mr Lucas and Mr Whitehead, where Mr Smith handed back company property and signed a company letter accepting his resignation.
On the following working day, Monday 5 July 2010, Mr Smith sought to retract his resignation. The company refused to accept the retraction, and he claimed unfair dismissal and religion or belief discrimination.
The tribunal had to decide whether it was more likely than not that Mr Smith’s contract of employment was terminated by dismissal rather than resignation. It found that Mr Smith was not forced to resign, and that he was not dismissed. He had considered the possibility of resignation before 2 July 2010, and chose to resign rather than face disciplinary action. The choice of resigning or facing disciplinary action was a stark one, but it was freely open to him. No pressure was put on him to resign.
The tribunal also found that it was reasonable of the company to refuse to accept Mr Smith’s retraction of his resignation. The resignation was not made in the heat of the moment, and although Mr Smith was extremely upset about his excommunication, there was no satisfactory evidence that he was incapable of making a rational decision that day. He had the opportunity to reconsider and retract his resignation at the meeting on the afternoon of 2 July, and there was no suggestion that Mr Lucas or Mr Whitehead put pressure on him to sign the letter that confirmed his resignation.
Regarding the discrimination claim, the tribunal found that the appropriate comparator was a non-Mormon employee who engaged in consensual extramarital sex. It found that such a comparator would have been treated in the same manner as Mr Smith: he or she would have committed an act of gross misconduct and would face disciplinary proceedings with dismissal as the likely outcome. The tribunal also found that the discrimination claim was not well founded. The issue was one of conduct - that Mr Smith had engaged in consensual extramarital sex - not belief.
- Read more case reports dealing with purported resignations:
- Deal with difficult resignation issues the right way with our "how to" guides:
- Can an employee retract his or her resignation? Find the answer to this question in the XpertHR FAQs section.