Disputes as to whether an employee has voluntarily resigned or been dismissed are commonplace and often raise difficult factual issues. That was certainly so in a case concerning an airport coach driver who, on leaving the office the day after the first COVID-19 lockdown came into force, announced that he would ‘call it a day’ (Bartlett v W & H Motors).

The man was aged over 65 and his employer argued that his words amounted to an unequivocal statement that he was retiring. When his colleagues were placed on furlough a few days later, receiving 100 per cent of their pay, he was not afforded that benefit on the basis that he was no longer employed. He subsequently launched Employment Tribunal (ET) proceedings, alleging unfair dismissal.

Upholding his claim, the ET found that his words lacked clarity and were ambiguous. He could have been referring to his work for the day, the end of his shift, his time at work prior to self-isolating with his vulnerable wife or to his employment as a whole. The evidence indicated that the employer was, at the time, itself unsure as to what he meant. No attempt was made to check that his intention was to retire.

The ET found that the man was dismissed by a subsequent letter which informed him that he had received his final pay. The employer did not seek to argue that such a dismissal would have been fair. His wrongful dismissal and breach of contract claims were also upheld in that he received no pay in lieu of notice. If not agreed, the amount of his compensation would be assessed at a further hearing.