Quitting in a Quarrel – How seriously should employers take “heat of the moment” resignations?
An employee who has properly given notice of termination of employment has no right to unilaterally withdraw it. However, case law has established that there may be ‘special circumstances’ which can vary this rule.
One example is where a resignation is made in the ‘heat of the moment’, perhaps where a resignation letter is written in a state of distress against a background of employee relations issues. It is, therefore, generally good practice for an employee to be given an opportunity to withdraw a resignation spoken in the ‘heat of the moment’. The Employment Appeal Tribunal (“EAT”) recently considered ‘heat of the moment’ resignations in the case of Omar v Epping Forest District Citizens Advice.
Omar v Epping Forest District Citizens Advice
On 19 February 2020, the employee resigned from his employment in the heat of the moment during an altercation with is line manager. He restated his intention to resign in a meeting later that same day. The employee was then asked to confirm his resignation in writing which he agreed to do but then sought to withdraw his resignation entirely. His line manager decided she no longer wanted to work with him. The company did not accept this withdrawal and treated his employment as terminating following his notice period due to his resignation. The employee raised a claim for unfair dismissal and wrongful dismissal on the basis he had not resigned. He argued that the case fell within the ‘special circumstances’ exception.
Employment Tribunal
It was agreed prior to the hearing that the parties had had previous altercations where the Claimant expressed that he was resigning, but did reconsider when he was invited to do so. There was a dispute about the precise words used on this occasion. The Respondent’s case was that the Claimant made statements including “that’s it, from today a month’s notice” and “I’m done with this place”. In contrast, the Claimant’s position was that he said something about being treated unfairly, and understood he was being offered an alternative position. The Respondent argued that while there was dispute over the precise words used by the Claimant during this expression of resignation, the words said intended to convey resignation and the Respondent understood them as such.
The Tribunal agreed with this and found that the claimant had opportunities to withdraw this resignation at later meetings, but did not do so. He had also expressly agreed to put his resignation in writing. The tribunal held that the Claimant had not been offered another position, but that he had genuinely believed that he was being offered another position, which he declined. The Tribunal concluded that the claimant had brought his employment contract to an end by his resignation on 19 February and, accordingly, there was no dismissal. The Claimant appealed to the EAT.
Employment Appeal Tribunal
The appeal was allowed and among other findings the EAT concluded that the ‘special circumstances’ exception did not exist. It was held that the same rules apply in all cases where notice of resignation is given in the employment context.
Once given, the notice cannot be unilaterally retracted; the giver of the notice cannot change their mind unless the other party agrees. Words that suggest resignation must be interpreted in line with normal rules of contractual interpretation and the words used are to be judged by a reasonable bystander in the position of the recipient of those words.
Therefore, the test is based on subjective understanding rather than subjective intention. The resignation must be ‘seriously meant’ or ‘really intended’ or ‘conscious and rational’ and events following this expression are relevant to the issue of whether the resignation was truly intentional at the time it was stated. The same principles apply for heat of the moment dismissals.
Additionally, the EAT found that the Tribunal had erred by focusing on the issue of whether the claimant had been offered a new role following the altercation. The EAT found this issue to be a ‘red herring’ and whether there was an offer of a new job did not assist with the question of whether the claimant resigned on 19 February. The EAT ordered a full rehearing of the case.
What should employers do?
This case serves as a useful reminder of the complexities surrounding heat of the moment resignations. It remains the case that an expression of resignation cannot be withdrawn unless both parties agree. However, words expressing an intention to resign should be interpreted from the perspective of a reasonable bystander in the position of the party on the receiving end of those words – Is there really an intention to resign? It is, therefore, prudent for an employer not to rely on words suggesting resignation which were spoken in the ‘heat of the moment’, or where there is any ambiguity, if a reasonable bystander might conclude that the employee did not truly intend to resign.
Another key take-away for employers is the application of these principles in the context of dismissal. It was held that the same rules would apply in relation to a dismissal – the test would be how the situation would be viewed by a reasonable bystander, and if it would appear to this individual that the dismissal was genuine. Any dismissal should be confirmed in writing to avoid any ambiguity, or if the employer did not intend to dismiss, the employer should clarify that as soon as possible.
If you would like further information on ‘heat of the moment’ resignations or dismissals, please do not hesitate to contact our employment team.
Katie Hendry, Solicitor: khe@bto.co.uk / 0141 221 8012 / Connect with Katie on LinkedIn
Kimberley Tochel, Trainee Solicitor: kto@bto.co.uk / 0141 221 8012 / Connect with Kimberley on LinkedIn
