This common question arises when an employee who is angry or upset resigns verbally following a disagreement, but, shortly after, changes their mind.
It is generally the rule that effective notice cannot be unilaterally withdrawn; however, a ‘heat of the moment’ resignation is an exception. In such cases, an employer who does not allow a reasonable opportunity for the employee to reconsider their decision before accepting a resignation at face value may risk an unfair dismissal claim.
In Omar v Epping Forest District Citizens Advice, the Employment Appeal Tribunal revisited key principles for resignation to be effective in the ‘heat of the moment’.
What is a valid resignation?
It is a common misconception that a resignation can be accepted or refused; once notice is given validly, neither party can refuse or withdraw without agreement from the other.
Resignations given in the ‘heat of the moment’ are an exception to this rule, so even if the resignation was clear and unambiguous, it is good practice for an employer to give the employee a reasonable opportunity to withdraw their resignation.
Although there is no prescribed form for notice to be communicated, most contacts of employment will specify that resignation must be given in writing to avoid such disputes from arising.
Omar v Epping Forest District Citizens Advice
In this case, the parties had a disagreement, during which the Claimant said: “that’s it, from today, a month’s notice”, words which his employer interpreted as his notice to resign.
The employer requested that his notice be put in writing, but the following day the Claimant wrote to his employer asking that his resignation be retracted as it was given in the heat of the moment. His employer refused, took his resignation to still stand, and treated his employment as terminating on a month’s notice.
The Claimant’s case was that he had not resigned, and he had therefore been unfairly dismissed. In the first instance, the Employment Tribunal found in favour of the employer and decided that the Claimant had in fact resigned. The Claimant appealed and whilst the case will be referred to a fresh tribunal for a new hearing and the outcome of that case is awaited, the Employment Appeal Tribunal set out the following helpful principles:
- Notice of resignation cannot be unilaterally retracted;
- Words of resignation must be construed objectively in all the circumstances;
- The intention of the speaker is not relevant – it does not matter whether the employee intended to resign;
- The ultimate question is whether an objective bystander would reasonably have concluded that the employee resigned; and
- It must be apparent to the reasonable bystander (in the position of employer) that:
- the words used constitute that of resignation,
- The resignation was seriously meant, really intended, or conscious and rational, and
- The objective assessment is carried out at the time the words are spoken.
This case is a useful reminder that employers should be careful when accepting resignations given in the heat of the moment. The employer should provide a reasonable opportunity for the employee to consider their decision, or they may risk an unfair dismissal claim.
Even if the words spoken were clear and unambiguous, Courts will look objectively at whether they can be construed as an intention to resign.
Our team of employment solicitors can advise you if you are dealing with resignation disputes, get in touch.