Can an employer rely on a “heat of the moment” resignation?
The EAT has recently allowed an appeal where an employment tribunal erred in finding that an employee’s resignation made in the “heat of the moment” was really intended.
An employee who has properly given notice of termination has no automatic right to later withdraw that notice. However, it is an established principle that employers should give employees the opportunity to withdraw a resignation which was given “in the heat of the moment”, once they have had an opportunity to calm down.
It is a common misconception that notice is not valid until it has been “accepted” or that it is possible for an employer to “refuse to accept” notice. The reality is that, once given, notice is deemed effective and cannot be withdrawn without the agreement of the other party. It was established in the case of Sothern v Franks Charlesly & Co that an employer can normally rely on unambiguous words of resignation unless there were any “special circumstances” which may suggest otherwise – this has become known as an exception to the general rule that an employer should take a notice of resignation at face value.
Case law has sought to establish the correct application of this exception and to date, has demonstrated that it should only be applied in limited circumstances, one of which is where an employee resigns in the “heat of the moment”.
A “heat of the moment” resignation refers to one made when words are spoken during an argument or a particularly stressful time for an employee. If such a scenario occurs, an employer should afford the employee a reasonable period of time to withdraw their statement of resignation. The employer should also make reasonable enquiries of the employee as to their intention if they become aware of circumstances which would cause them to question the employee’s decision.
The recent Employment Appeal Tribunal (EAT) case of Omar v Epping Forest District Citizens Advice [2023] considered the various case authority on “heat of the moment” resignations and dismissals in more detail.
Mr Omar resigned from his employment during an altercation with his line manager. In a separate meeting on the same day, his employer acknowledged that Mr Omar wished to remain in employment and offered him an alternative role. At a subsequent meeting a few days later, Mr Omar was informed that his line manager no longer wished to work him and that his resignation would in fact stand. Mr Omar did not confirm his resignation in writing when asked to do so and instead sought to formally retract it. Mr Omar’s employer refused to accept his retraction and treated his employment as terminating on one month’s notice.
Mr Omar brought claims for unfair dismissal and wrongful dismissal, during which he argued that his situation fell within the “special circumstances exception” mentioned above. The tribunal, rejected Mr Omar’s claims and concluded that he had intended to resign and therefore there was no dismissal.
On appeal, the EAT conducted a thorough review of case law on resignations and dismissals made in the heat of the moment. The EAT recognised that whilst each case will turn on its own facts, there must be an objective analysis of the question “did the employee really intend to resign?” and to some extent, account taken for whether the employee was “in their right mind”.
The EAT found that the tribunal should not have considered whether there were any special circumstances that justified the decision to treat Mr Omar as having resigned and instead should have considered whether it would have appeared to any reasonable employer, that not only having used words that constituted words of resignation, whether Mr Omar had “really intended” to resign. It remitted the case back to the tribunal to be reconsidered.
The key things/reminders to take away from the judgment are as follows:
- There is no such thing as the “special circumstances” exception. The same rules apply in all cases where notice of dismissal or resignation is given in an employment context.
- Once given, notice cannot generally be unilaterally retracted and an employee cannot change their mind unless the other party agrees.
- Employers should consider the words of dismissal or resignation – that being, in using these words, did the employee genuinely intend to resign.
- The resignation must be “really intended” or “conscious and rational” and should be considered objectively.
- Employers should consider the wider facts around an employee’s resignation where it is made in a “heat of the moment” scenario.
- Any evidence or information on what happened after the resignation is only admissible insofar as it casts light on whether the resignation or dismissal was really intended at the time.
This outcome casts doubt upon previous authorities, reminding us that these are often tricky cases to determine. The judgment gives helpful clarification, however, of how Tribunals should go about it. Objective analysis of the intention of the employee’s actions and words is key and the threshold for retraction is high. One thing that remains clear is that if the employee genuinely intended to resign but subsequently changed their mind, their resignation is not automatically cancel out and can only be withdrawn with the employer’s agreement.
If you require any employment advice in respect of issues raised in this article, please contact us on [email protected].
