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Taking the heat out of a resignation

November 21, 2023

Imagine the following scenario.  An employee has an argument with their boss.  The employee chucks the office keys at the boss and tells them to shove their job where the sun doesn’t shine.  The employee leaves the workplace, gets into their car and goes home.  A fairly typical scenario (albeit one with many possible permutations) where the reasonable employer would show caution and consider whether the resignation was genuine.  

Employers will be familiar with the need to show caution where a resignation is tendered in “special circumstances”.  For example, if the words of resignation are uttered by the employee in the heat of the moment.  A sensible move in such a case would be for the employer to offer a cooling off period, for example, by writing to the employee and offering a window of time for the employee to retract their resignation.  

In the recent case of Omar v Epping Forest District Citizens Advice, O resigned during an altercation with his boss.  On the same day, O alleged that he was offered an alternative role in the business by the CEO.  Two days later, in a meeting between O and the CEO, the CEO told O that his resignation still stood because his boss no longer wished to work with O.  O was asked to confirm his resignation in writing to which he agreed.  However, O did not confirm his resignation and instead wrote seeking to retract it.  The employer declined to allow the retraction and processed O as having resigned.  

O lodged a claim for unfair dismissal (arguing that his resignation was not a resignation, but, rather, a dismissal).  While the exact words were in dispute, the tribunal found that, during the altercation, O did utter  ‘words intended to convey his intention to resign’.  He had the chance to retract the resignation in 2 subsequent meetings and did not.  The tribunal placed weight on the fact of O having agreed to put his resignation in writing.  It concluded that this was a resignation and not a dismissal.  O lost the case.  

Unhappy with the outcome, O appealed to the EAT where he was successful.  The EAT sent (remitted) the case back to a different tribunal to rehear the case afresh.  Their reasons were because the tribunal had failed to properly direct itself to the correct principles (in particular, the tribunal had failed to make findings about a crucial aspect of what O had actually said when he supposedly resigned, and they wrongly focused on this special circumstances concept):-

  • There is no such thing as “the special circumstances exemption”.
  • Once given, notice of resignation (or dismissal) cannot be unilaterally withdrawn without the agreement of the other party;
  • The words of resignation (or dismissal) must be viewed objectively based on the facts of the case and viewed from the point of view of the reasonable bystander;
  • A notice of intention to resign at some point in future is not sufficient; 
  • The words of resignation must “seriously meant” or “really intended”; and 
  • Was the speaker of the words (of resignation) in their “right mind”.

The EAT recognised that it is likely to be a fine line between resignations which were not “really intended” and cases where an individual seeks to impermissible change their mind after a genuine resignation.  

While the EAT has bombed out this concept of special circumstances (heat of the moment etc), the reference to whether an individual was in their “right mind” seems to cover the same point. Employers should remain wary of heat-of-the-moment resignations.  

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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