Is a resignation ‘in the heat of the moment’ really a resignation?
Often, when an employee resigns it will be clear that the resignation is really intended. However, in circumstances where an employee resigns in the heat of the moment, the employer may need to consider whether or not the employee really intended to resign.
Mr O resigned from his employment ‘in the heat of the moment’ during an altercation with his line manager. Although it was subsequently recognised that he wanted to continue in his employment, his manager decided that she no longer wanted to work with him. Mr O was told this and that his resignation would stand. He was asked to confirm his resignation in writing, which he said he would do. However, later he tried instead to formally retract his resignation by email stating ‘I wish to retract my resignation as it was a ‘heat of the moment’ resignation resulting from unresolved grievances.’ The employer refused to accept the retraction of Mr O’s resignation and treated his employment as terminating. Mr O worked his notice period.
Resignation in the heat of the moment
Mr O issued a claim in the Employment Tribunal for unfair and wrongful dismissal. Mr O argued that he had not resigned and that he was dismissed when he was informed that his manager could not work with him. The employer’s case was that Mr O had verbally resigned and this was accepted by the manager. The Tribunal found that Mr O’s words were unequivocal and amounted to a resignation; there was no immediate retraction; and Mr O had agreed to put his resignation in writing. The Tribunal agreed with the employer and dismissed Mr O’s claims. Mr O appealed to the Employment Appeal Tribunal (EAT).
Resignation or no resignation?
The EAT noted a number of general principles from case law in relation to resignation. These include that once notice of resignation has been given, it cannot be unilaterally retracted. The person giving notice cannot change their mind unless the other party agrees. Whether notice of resignation has been given must be determined objectively, in all the circumstances of the case. The circumstances include anything that would affect the way in which the language used would be understood by a reasonable bystander in the position of the employer. It must be apparent to the reasonable bystander that the words used constituted immediate resignation or immediate notice of resignation. It is not enough if the person expresses an intention to resign in the future. It must also be apparent that the resignation was ‘seriously meant’ or ‘really intended’. This will always be a question of fact for the Tribunal to decide.
The EAT found that the Tribunal had not considered these principles and had not made the findings of fact necessary to properly answer the core legal question. This included not making a finding of fact on the exact words of resignation used by Mr O, noting instead that a dispute between the employer and Mr O as to the words used were ‘not relevant’ to determination of the claim. The Tribunal had also not made a finding of fact on how Mr O appeared at the time, which is relevant to whether it objectively appeared that he ‘really intended’ to resign. The case was remitted to a new Employment Tribunal for a full rehearing to decide whether this was a case of ‘not really intending to resign’ or ‘intending to resign but changing his mind’.
The question for the Tribunal to consider will be whether the employee ‘really intended’ to resign, judged from the perspective of a reasonable employer at the time the words were used. The EAT commented that the type of question that a Tribunal might find helpful to consider in this case include how Mr O appeared at the time, was he angry? Was the language used the sort of language he would normally use? Did he appear to be ‘in his right mind’?
The general position is that if the resignation was not really intended, it will not be effective. If it was intended, the fact that the employee changed their mind afterwards will not ‘cancel out’ their resignation.
Resignation can be ‘really intended’ even if the employee is angry, stressed or under extreme pressure. However, it will be a question of fact in each case for the Tribunal to decide which side of the line a case falls on.
Where resignation is given ‘in the heat of the moment’, it is normally good practice to allow the employee an opportunity to withdraw their resignation after they have had time to calm down and reflect.
23 November 2023
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©2023 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST