Patel v Matalan Retail Ltd ET/3302234/10
Date added: 16 February 2011
unfair dismissal | misconduct | forced resignation
Forcing an employee to resign can easily result in a successful tribunal claim, as this case shows.
There are situations where it can be appropriate and lawful for an employer to suggest that an employee resigns. However, it is always wrong for an employer to force an employee to resign by saying that, if he or she does not leave voluntarily, he or she will be dismissed. Essentially this leaves the employee with no choice but to resign.
A disciplinary officer should be wary of holding an informal meeting with an accused employee before his or her disciplinary hearing. Even if the officer does nothing wrong, he or she will be left open to allegations from the employee - for example, that the officer forced the employee to resign.
Mr Patel began work for Matalan Retail Ltd in 2002, and throughout his employment was store manager at various stores owned by the company. In March 2009, he was store manager in Enfield. As a result of an investigation following a poor stocktake, the company discovered that Mr Patel had failed to ensure that his deputy store managers were following the correct procedures. The company’s disciplinary policy at that time allowed for employees to be offered a warning, rather than go to a disciplinary hearing. Mr Patel agreed to accept a level 3 warning for gross misconduct, which was to remain on his file for 12 months, until March 2010.
In November 2009, the company moved Mr Patel to its Romford store on short notice, and a few weeks later moved him again, to its St Albans site. Mr Patel was concerned about problems at the St Albans store, and felt that he was being “set up to fail”. On 31 December 2009, Mr Patel closed the store with only one other member of staff present, in breach of company procedure, which required a total of three members of staff to be present. He did so because only one other member of staff had volunteered to stay behind with him when the time came to close the store.
The company was alerted to Mr Patel’s breach of procedure by an anonymous call to its confidential hotline, and began an investigation. Mr Patel admitted what he had done, and that he knew the correct procedure. The company appointed another manager to conduct the disciplinary hearing, but he was unable to attend. As a result, Mrs Jenkins, a regional HR manager whom Mr Patel had known since starting employment with the company, was appointed as disciplinary officer.
The first that Mr Patel knew of Mrs Jenkins’ appointment was when he arrived at the hearing on 16 March 2010, having just returned from two weeks’ annual leave. He was concerned about the outcome of the hearing, given his live final written warning, but he believed that the mitigating circumstances regarding his actions on 31 December 2009 gave him a reasonable prospect of not being dismissed.
Before the hearing, Mrs Jenkins invited Mr Patel outside for a cigarette. Mr Patel’s evidence was that, during their conversation, Mrs Jenkins informed him that, in light of his previous warning, she would dismiss him, and would not take his mitigating circumstances into account. Mr Patel alleged that Mrs Jenkins informed him that his only other option was to resign. After some time to think about his position, Mr Patel informed Mrs Jenkins that he would accept the option of resignation, and wrote a resignation letter stating that he had been "left with no other option but to take this action". Mr Patel claimed constructive dismissal, arguing that he had been unfairly treated by the company regarding his moves to different stores. He also claimed that he had not known, at the time of accepting it, that the warning he had received in 2009 would be a final one.
The tribunal found that the company had not fundamentally breached Mr Patel’s contractual terms of trust and confidence so as to justify his resignation by way of constructive dismissal. It found that he had been fully aware of the warning that he accepted in 2009, and that relocations at short notice are not uncommon events in the retail world.
However, the tribunal found that Mr Patel had been unfairly dismissed by way of forced resignation. The tribunal found Mr Patel credible with regard to his account of his discussion with Mrs Jenkins on 16 March 2010, and that he would not have resigned if that discussion had not taken place. The tribunal also held that the actions of Mrs Jenkins in meeting with Mr Patel informally immediately prior to his disciplinary hearing, and discussing resignation with him as an alternative to dismissal, effectively rendered it impossible for him to have received a fair hearing.
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