The difficulty for an employer can often be in deciding how to respond and whether to accept the employee’s resignation. Or in some cases, the resignation might be welcome news for the employer, but the employee seeks to retract the resignation, arguing they did so in the heat of the moment.

The general rule is that a resignation from an employee cannot be unilaterally withdrawn without the consent of the employer. If an employee submits a letter of resignation, and a few weeks’ later they realise they have made a mistake, the resignation cannot be retracted unless the employer agrees to it. However, there is an exception to the rule, and that is ‘heat of the moment’ resignations, where it is generally considered that these are not binding on an employee because they may not reflect the true intention of the employee.

The recent case of Omar v Epping Forest District Citizens Advice has provided the Employment Appeal Tribunal (EAT) with an opportunity to clarify the principles that employers should consider if they find themselves dealing with this type of resignation.

So what happened in Omar?

Mr Omar worked for the Epping Forest District Citizens Advice Centre (“Advice Centre”).

• On 3 February 2020, the CEO of the Advice Centre wrote to Mr Omar about his timekeeping. Mr Omar was unhappy with the letter and verbally resigned to his line manager, Ms Skinner. Ms Skinner told him to calm down and indicated that she would not accept his resignation.
• On 5 February 2020, Mr Omar became angry again about another matter, and resigned again, this time giving his one month’s notice. Ms Skinner responded by advising Mr Omar to calm down and again said she would not accept this resignation.
• On 19 February 2020, Mr Omar became angry for a third time, when Ms Skinner queried some holiday dates which Mr Omar believed he had booked. He swore and shouted at Ms Skinner and used words of resignation. In particular, he said he was ‘done with the organisation’ and that Ms Skinner should ‘tell who you need to but I’m off because I’ve had enough’.

Later that day (19^th February), the CEO of the Advice Centre had a meeting with Mr Omar and Ms Skinner to discuss what had happened earlier that day. Mr Omar explained his reasons for ‘blowing up’ – he said he was aggrieved about the letter regarding his timekeeping and added ‘I have been working under considerable pressure for some time as I was also helping my father care for my mother who has dementia.’  Mr Omar alleged that the meeting ended with the CEO asking if he and Ms Skinner could continue working together and that the CEO had offered him an alternative role and given him a chance to think about his position.

However, the Advice Centre argued that the purpose of this meeting was to ensure Mr Omar did not leave his employment on bad terms and that at the end of the meeting, the CEO had asked Mr Omar and Ms Skinner to go away and think about how they could continue working together over Mr Omar’s 1 month notice period. It denied having offered Mr Omar an alternative role and said that Mr Omar did not attempt to retract his resignation.

On 21 February 2020 (his next working day), Mr Omar met with the CEO again. She told him that Ms Skinner had confirmed that she could no longer work with him and that his resignation would stand. The Advice Centre’s case was that Mr Omar said in response that he could not work with Ms Skinner either and that therefore his resignation still stood. It was accepted by Mr Omar that at the end of this meeting, he agreed to the CEO’s requests to put his resignation in writing.

However, Mr Omar did not do that.

Instead, on 23 February 2020 he sent an email to the CEO, stating ‘my understanding is that as a result of my behaviour [Ms Skinner] now wants to accept my resignation as she will be unable/unwilling to work with my going forward, which I understand. However, I wish to retract my resignation as it was a “heat of the moment” resignation’. Mr Omar went on to suggest that the Advice Centre allocate him to a different office.

The Advice Centre refused to accept the retraction of his resignation and treated his employment as terminating on one month’s notice running from 19 February 2020.

Mr Omar claimed he had been unfairly dismissed.

What did the Employment Tribunal find?

The Employment Tribunal concluded that Mr Omar had resigned, and that as a result, there was no dismissal by the Advice Centre. Therefore, in the absence of a dismissal, his claim for unfair dismissal failed. Mr Omar appealed to the EAT.

The EAT Decision

The EAT found that the Tribunal’s decision was ‘substantially flawed’ and that it had not applied the correct legal principles to the case, and that the case would therefore be remitted to a fresh Tribunal to conduct a full rehearing. This means the claim for unfair dismissal will be reheard, and possibly a different outcome will be reached.

The EAT did however use the case as an opportunity to set out guidelines that an employer should consider when dealing with resignations:-

• Words of resignation used by the employee must be construed objectively – consideration must be given to whether, objectively speaking, it would have appeared to the reasonable bystander that the employee really intended to resign.
• What the employer subjectively understood the employee’s words to mean is relevant, but it is not definitive.
• Importantly, the subjective intention of the employee is not relevant (i.e. what was going through their head when they communicated the words of resignation) – the key is what was actually said by the employee.
• It must be apparent that the employee genuinely intended to resign and that they were in their right mind at the time – if an employee is highly emotional then this could lead to a suggestion that their words were not genuinely intended.
• The types of circumstances that might suggest a resignation was not really intended include where the employee is angry and overhasty, is behaving out of character, has a relevant mental impairment, is immature, or is under extreme pressure from another party.
• Aswell as the precise words used by the employee at the time of the resignation, any evidence about what happened after the resignation may also help in judging whether a resignation was really intended at the time. For example, the evidence may suggest the resignation was really intended, but that the employee had simply had a change of heart afterwards, in which case the resignation will still stand.
• The same rules apply to written notices of resignation as to oral ones. However, a written notice will usually indicate to an employer a certain degree of thought and care, which will make it less likely that the employee did not intend to resign.

 

So, what are some useful hints and tips for employers to consider when dealing with heat of the moment resignations…..

Where an employee resigns in an obviously composed and measured manner, it will usually be much less risky for the employer to take the resignation at face value. However, where an employee is visibly upset, angry, stressed, or emotional and impulsively verbalises words of resignation in a pressured or stressful situation, employers should not assume the resignation is valid. Instead, it is good practice to take a step back and assess the situation, consider the exact words used by the employee, alongside the EAT’s guidelines, and decide whether it is reasonable to accept the resignation in all the circumstances.

It would be advisable for managers to take an accurate written note of the exchanges between the employer and employee and to formally record what they understood the employee’s exact words to mean. Any meetings to discuss the resignation should be documented.

It may also be appropriate, to mitigate any risks, to offer the employee an opportunity to take some time out to reflect on the situation. If on reflection they do still wish to resign, employers should ask that they confirm this in writing by giving their formal notice.

These types of situations are undoubtedly a tricky area for employers and no two ‘heat of the moment’ resignations are the same. You, as the employer, have to tread carefully, as if you were navigating through a jungle (see what we did there!). If you have any questions about the effect of this decision, or would like any employment advice more generally, please do not hesitate to get in touch with our Employment team who will be happy to assist.

The obvious theme being the ‘dismissal’, and the fact that employment is ending or has ended. However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. A bit like an Urban dictionary, we will tell you what they really mean…

Summary Dismissal

This one is easy – a summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed. 

 

Wrongful Dismissal

This is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.

If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.

Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an anaylsis of whether the employer has breached the employment contract.

This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.

 

Unfair Dismissal

To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.

If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.

The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.

Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable. 

 

Constructive Dismissal

The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.

In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.

There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.

In essence, the employee has to prove that they have been dismissed ‘constructively’ by their employer. If they are able to overcome that burden, then the Employment Tribunal will consider the fairness of the ‘dismissal’. 

All clear…well, brace yourselves…it is possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…

We like to keep things straightforward at Sherrards; we cannot say the same for the law.