As part of The Sherrards Training Academy, we have asked our Legal Assistants and Trainee Solicitors to write articles to support their learning, and also to ensure they start to build on their own personal brand. This article has been fact-checked and proofread by Head of the Employment department, Mark Fellows.

On Monday the government issued a consultation paper which proposes re-introducing fees in Employment Tribunals and the Employment Appeals Tribunal, with the main aim ‘to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services’. The new proposal comes nearly 7 years after the Supreme Court ruled the previous charging regime as unlawful when trade union Unison successfully argued that it prevented thousands of employees from securing justice.

The proposed fee is £55 to bring a claim in the Employment Tribunal, which is considerably modest in comparison to the previous fee regime This is a one-off fee which is £55 irrespective of the type of claim (but some limited claims will be exempted) or whether the claim is brought by a single claimant or multiple claimants. Unlike the 2013-2017 Tribunal fee regime, no hearing fee will be applied under the government’s most recent proposals.

To start an appeal in the Employment Appeals Tribunal, the same fee of £55 would also apply.

A system for remission from fees would be available for those who genuinely cannot afford to pay the fee (as defined by the government).

It is thought that the proposal may act as an incentive for parties to apply their mind to settlement and engage in negotiations early in the process through ACAS, without the need to proceed to issuing actual claims in the Tribunals, thereby helping to alleviate the huge pressures currently faced by the Tribunal service. It is questionable whether such a modest fee will actually have this impact, but at the same time, it was recognised that if the fee was too high, it might be open to further challenge from the Unions.

The consultation runs for 8 weeks and closes on 25 March 2024 – please stay tuned for further updates from the Employment Team.

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.