When emotions are high, and conflict occurs, employees may resign in the heat of the moment. While it may be tempting to simply acknowledge this resignation and leave things at that, employers should treat this type of resignation with caution.
While usually an employee has no right to unilaterally withdraw their resignation, the Employment Appeal Tribunal (EAT) has established that good industrial relations practice requires an employee to be given the opportunity to withdraw a resignation spoken in the heat of the moment. This insight looks at the recent decision of Omar v Epping Forest District Citizens Advice which provides useful guidance to employers in these situations.
The Background
Mr Omar resigned ‘in the heat of the moment’ during an altercation with his line manager saying “… that’s it, from today a month’s notice”. His employer asked Mr Omar to put his resignation in writing, which he initially said he would but subsequently declined. Four days later, Mr Omar tried to withdraw his resignation – his employer refused.
Mr Omar brought claims of wrongful and unfair dismissal alleging that he thought he had retracted his resignation. The tribunal initially held that Mr Omar had effectively given his resignation and his claims for unfair and wrongful dismissal were dismissed.
He appealed to the EAT, where the tribunal decision was found to be incorrect and the case was remitted back to the tribunal for a fresh hearing. In its judgement, the EAT set out key principles for employers to consider when determining if heat of the moment resignations should be treated as effective.
EAT’s Guidance:
In its judgement, the EAT set out the following key principles on the construction of notices of resignation:
- A notice of resignation, once effectively given, cannot be unilaterally retracted – it can only be retracted by both parties’ agreement.
- Words used in a resignation should be looked at objectively in all circumstances of the case. The subjective uncommunicated intention of the employee is irrelevant.
- The subjective understanding of the recipient is relevant but not determinative of the conclusion of whether notice was effectively given.
- The reasonable bystander test is used to evaluate whether the reasonable employer would consider:
- That words of resignation were ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.
- That words used constitute an actual resignation. It is not sufficient for an employee to express an intention or desire to resign in the future.
Summary
The EAT’s guidance in this case is helpful to employers trying to establish if an employee has effectively resigned in the heat of the moment. Employers should consider if the resignation was objectively intended to construe an actual resignation. If not, the resignation may not be effective, and any subsequent dismissal could result in a claim. It is important to highlight that the tribunal will consider theses decisions on a case-by-case basis, considering the facts of each scenario in turn.
If you have any questions or need assistance, please do get in touch with our employment team.
