When is a resignation not really a resignation?
Employees sometimes resign “in the heat of the moment”, and may try to retract their resignation later. It’s settled law that an employer cannot accept a resignation genuinely “in the heat of the moment”, but there has been a recent case which has looked at this question in more detail (Omar v Epping Forest District Citizens Advice [2023] EAT 132).
Where an employee or employer has properly given notice of termination, they have no right to unilaterally withdraw it. However, good employment practice requires an employer or employee to be allowed to withdraw words of dismissal or resignation spoken “in the heat of the moment” after they have calmed down. Case law had determined that the following special circumstances mean that a decision can be withdrawn:
- An immature employee
- A decision taken “in the heat of the moment”
- An employee being jostled into a decision by the employer
These exceptions only apply in limited circumstances, and must be rectified in a reasonable period of time (normally a day or two).
However, the decision establishing special circumstances has been cast into doubt by the recent EAT decision in Omar.
In Omar, the claimant resigned “in the heat of the moment” during an altercation with his line manager. Later that same day, he met with his manager and they discussed the possibility of an alternative role. However, a couple of days later, his manager told the claimant that she no longer wanted to work with him so his resignation would stand. He claimed unfair dismissal and argued the special circumstances exception. The Employment Tribunal concluded he had resigned and there was no dismissal. He appealed. The EAT found that the tribunal had erred in law by failing to make adequate findings of fact and failing to direct itself properly in law. Omar’s appeal was allowed and remitted to a fresh employment tribunal for a full rehearing in the context of the EAT’s findings.
In the appeal, the EAT carried out a thorough review of the case law. The EAT found that there is no such thing as the “special circumstances exception”. Instead, an objective test should be applied to determine whether or not it would have appeared to a reasonable employer that there was a real intention to resign. The law does not allow for a “change of heart” and so it is only if the resignation was not really intended that it will not be effective. It is a relatively high threshold to establish that such words were not really intended. An employee who genuinely meant to resign, but changes their mind later, will not “cancel out” their resignation.
What should employers do?
Where an employee resigns “in the heat of the moment” and attempts to retract their resignation shortly afterwards, it is still wise to proceed with caution to avoid an unfair dismissal claim. However, in light of the recent findings of the EAT, where the resignation was really intended, it is open to an employer to accept that resignation. An employer should also consider the risk of constructive dismissal, if the resignation is in response to a fundamental breach of the employee’s contract of employment.
If you have any questions regarding this case, or if you have a situation where an employee is seeking to retract their resignation, please do get in touch with a member of the team.
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