The Employment Appeal Tribunal (EAT) recently ruled that the Employment Tribunal (ET) had made substantial errors in the law after ruling an employee had genuinely resigned after a heat of the moment argument with his line manager.
As a general principal, an employer can accept an employee’s resignation if provided in a clear, genuine, and unambiguous manner. Should the employee wish to subsequently retract their resignation, they would need to seek their employer’s explicit agreement, otherwise the resignation would stand.
Nonetheless, spur of the moment resignations have been a notoriously difficult area for employers to navigate for many years, despite the case law clearly outlining that heat of the moment resignations satisfy a special exemption which allow an employee to retract their notice without the employer’s agreement.
Employers have been known to capitalise on a resignation given in the heat of the moment, deliberately overlooking the circumstances in which the statement transpired, in an attempt to rid themselves of a ‘problematic’ employee.
This latest ruling from Omar v Epping Forest Citizens Advice [2023] has provided a fully comprehensive list of guidelines to follow when determining the validity of a resignation. In this case, Mr Omar had recorded multiple instances of impulsive resignations during his employment, to which on the final occasion his line manager decided that she no longer wanted to work with him, despite his attempts to formally retract his notice. The ET agreed there were special circumstances that justified this case departing from the general rule. Mr Omar had provided a genuine resignation, and therefore he had no grounds to claim for unfair and wrongful dismissal.
The EAT permitted the employee’s appeal, concluding the ET had erred in their direction of the law. Despite the employee’s previous rash attempts of resignation, his history should not have been a factor in considering whether the resignation was genuine, the focus should remain on whether he “really intended” the words said on that occasion.
The EAT also introduced a new objective test for determining an employee’s intention as to whether it is clearly apparent to a ‘reasonable bystander’ that the words used constitute “immediate notice” which was “seriously meant” and whether the employee was “in their right mind” at the time. This does not mean the decision should be a sensible one, but in that situation, they were thinking clearly and not influenced by external pressures.
These principles also apply for hastily written resignation communications (e.g. a letter or email), despite the assumption these would take a higher level of consideration, the same objective test applies to confirm the employee was thinking rationally when writing their notice.
The EAT have purposively detailed their ruling to make employee’s rights abundantly clear, furthermore minimising any doubt or leeway an employer may have relied on previously.
What Should an Employer Do?
When faced with a heat of the moment resignation, an employer should never be too quick to accept the notice at face value but instead consider whether the words were genuinely meant, in light of the circumstances leading up to the resignation and/or incident. Understanding the pressures of the work environment at that moment can give perspective on any impulsive or irrational behaviour. Further consideration, including an informal review may uncover high-stress factors such as workplace bullying or an overload of work, which may have led to an emotional-driven incident resulting in the resignation.
By allowing a reasonable time frame of 24 hours before accepting a resignation in these circumstances, the employee has time to reconsider their decision with a calmer mindset. This provides the employer with an opportunity to organise a meeting, or reach out to the employee via email, to seek clarification as to whether they still intend to resign.
Employers who fail to take these precautions may run the risk of tribunal claims against them for unfair, wrongful, or constructive unfair dismissal. Claims may even be made against an employer for harassment or disability discrimination and in such cases there would be no need for any qualifying period for continuous employment.
Future of Hasty Resignations
Going forward, employers should make themselves aware of the criteria for valid resignations, taking the time to ensure that each notice of resignation presented to them should be examined, including any circumstantial evidence leading up to that point.
Realistically, this ruling will not prevent opportunistic employers attempting to convince their employees that they cannot retract an impulsive resignation but it may lead to the actions of an employer being challenged in a future employment tribunal.
