Nathan May - O'Brien is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan considers a recent case from the Employment Appeal Tribunal on resignations made in the "heat of the moment."
A resignation from an employee can be difficult for an employer to navigate, particularly if the circumstances behind the resignation are acrimonious. The recent case of Omar v Epping Forest District Citizens Advice provides some useful guidance in managing such situations.
Facts
Mr Omar had previous issues with his line manager, Ms Skinner, which culminated in Mr Omar verbally resigning on 19 February. It was Mr Omar’s argument that the next day his employer recognised that he wished to continue working with them and they offered him an alternative role. However, by 21 February his employer had explained to Mr Omar that Ms Skinner no longer wished to work with him, and his resignation would stand.
Mr Omar was then asked to confirm his resignation in writing. He confirmed verbally that he would do this but never committed to this in writing and sought to retract his resignation. This was not accepted by his employer who confirmed the termination of Mr Omar’s employment with one month’s notice.
At the Employment Tribunal, Mr Omar argued he had not resigned in that any purported resignation had been “in the heat of the moment” meaning his words of resignation couldn’t be taken at face value. He therefore claimed that he had been unfairly dismissed. The Employment Tribunal rejected Mr Omar’s claim and found on the facts of the case that the words he used were unequivocal and were intended to resign. Mr Omar appealed the Employment Tribunal’s decision.
What did the Employment Appeal Tribunal (“EAT”) decide?
The EAT allowed Mr Omar’s appeal on the basis that the Employment Tribunal’s reasoning was flawed. Of relevance to employers, the EAT reviewed the legal principles in respect of resignations:
Once an employee gives notice of termination, this cannot be retracted unless the employer agrees to this.
Words conveying a resignation, or potentially doing so, need to be construed objectively considering all the circumstances.
The words are judged from the perspective of a “reasonable bystander” in the position of the individual receiving the words of resignation.
It must be apparent to the “reasonable bystander” that:
Words were used which constitute an immediate resignation or a resignation on notice. It’s not sufficient to express the intention to resign in the future; and
The dismissal or resignation needs to be “really intended” meaning that the speaker used words which appeared to genuinely express that intention.
This objective assessment is carried out at the time the words are uttered, which will include an assessment of employee’s mindset. Evidence as to what happened after the resignation is admissible to the extent that it is relevant to the question of whether the resignation was “really intended”.
Heat of the moment resignations have no special status in law, and, in this case, the question was whether a reasonable employer could have concluded that Mr Omar really intended to resign.
What should employers note from this case?
The case provides a useful summary of the factors an Employment Tribunal will assess when there is a dispute as to whether a resignation or a dismissal has taken place. In the context of a resignation, the focus will be on what an employee “really intended” when they used words purporting to resign. Depending on the situation, employers may well be best advised to allow an employee a cooling off period before checking that it was genuinely the employee’s intention to resign.
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.
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