An employee who has properly given notice of termination of employment has no right to unilaterally withdraw it. However, case law has established there may be special circumstances that can vary this rule, including where resignations are made in the heat of the moment. This was recently considered by the Employment Appeal Tribunal.
In Omar v Epping Forest District Citizens Advice Omar resigned from his employment in the heat of the moment during an altercation with his line manager. He was then asked to confirm his resignation in writing, which he agreed to do, but he subsequently sought to withdraw his resignation entirely. The company did not accept this withdrawal and treated his employment as terminated. He raised a claim for unfair dismissal and wrongful dismissal on the basis he had not resigned, arguing that the case fell within the ‘special circumstances’ exception.
The respondent’s case was that the claimant made statements including: “That’s it, from today a month’s notice” and: “I’m done with this place.” In contrast, the claimant’s position was that he said something about being treated unfairly, and understood he was being offered an alternative position. The respondent argued that the words said intended to convey resignation and the respondent understood them as such.
The tribunal agreed and found that the claimant passed up opportunities to withdraw his resignation and expressly agreed to put his resignation in writing. It was also held that the claimant was of the genuine belief that he was being offered another position, which he turned down. Therefore, the tribunal held that the claimant brought his employment to an end through his resignation and was not dismissed. The claimant appealed.
Employment Appeal Tribunal
The appeal was allowed and the EAT concluded that the ‘special circumstances’ exception did not exist. It was held that the same rules apply in all cases where notice of resignation is given.
Once given, the notice cannot be unilaterally retracted; the giver of the notice cannot change their mind unless the other party agrees. Words that suggest resignation must be interpreted in line with normal rules of contractual interpretation and the words used are to be judged by a reasonable bystander in the position of the recipient of those words.
Therefore, the resignation must be ‘seriously meant’ or ‘really intended’ or ‘conscious and rational’. The same principles apply for heat of the moment dismissals.
The EAT found the issue of whether the claimant had been offered a new job to be a ‘red herring’ that did not assist with the question of whether the claimant resigned. The EAT ordered a full rehearing.
What should employers do?
It remains the case that an expression of resignation cannot be withdrawn unless both parties agree. However, words expressing an intention to resign should be interpreted from the perspective of a reasonable bystander in the position of the party on the receiving end of those words – is there really an intention to resign? It is, therefore, prudent for an employer not to rely on words suggesting resignation that were spoken in the heat of the moment or, where there is any ambiguity, if a reasonable bystander might conclude that the employee did not truly intend to resign.
Another key takeaway for businesses is that the same rules would apply in relation to a dismissal. Any dismissal should be confirmed in writing to avoid any ambiguity or, if the employer did not intend to dismiss, they should clarify that as soon as possible.
Katie Hendry is a solicitor and Kimberley Tochel a trainee solicitor at BTO Solicitors