Resignations Given In The “Heat Of The Moment” – Can They Be Retracted?

Sometimes an employee’s immediate response to conflict in the workplace is to make a hasty decision by verbally resigning on the spot. These types of resignations are commonly described as “heat of the moment” resignations. Employers will need to treat such resignations carefully, as an employee may make statements during a heated conversation that they did not genuinely mean, did not intend to say or, soon after, regret saying.

The Employment Appeal Tribunal recently reviewed the legal position in relation to heat of the moment resignations and provided useful guidance in the case of Omar v Epping Forest District Citizens Advice.

Background

On 19 February 2020, the Claimant verbally resigned from his employment in the heat of the moment during a dispute with his line manager.

The Claimant had also resigned in the heat of the moment on two previous occasions, but these resignations had not been accepted by his employer, the Respondent, and the Claimant later withdrew them after reconsidering his position.

In respect of the third heat of the moment resignation, the Respondent asked for this to be put in writing. The Claimant initially confirmed that he would, but failed to do so and instead sought to formally withdraw his resignation. The Respondent refused to permit the Claimant to withdraw his resignation and treated his employment as terminating on one month’s notice from 19 February 2020.

The Claimant brought a claim in the Employment Tribunal for unfair and wrongful dismissal, as he believed he had not resigned. The Employment Tribunal found at the final hearing in January 2021 that the Claimant had resigned and, therefore, his wrongful and unfair dismissal claims were dismissed.

Employment Appeal Tribunal

The Claimant appealed the decision to the Employment Appeal Tribunal (EAT), and the appeal was allowed. The EAT undertook a full review of the case law and set out the following principles:

• A notice of resignation, once effectively given, cannot be retracted without the other party’s agreement.
• Words of resignation should be construed objectively in all the circumstances of the case in accordance with the normal rules of contractual interpretation. The circumstances can include anything that would have affected the way in which the language used would have been understood by a reasonable bystander – whether, objectively, it would have appeared to the reasonable bystander that the Claimant “really intended” to resign.
• The perspective from which the words used are to be judged is that of the reasonable bystander in the position of the recipient of the words used. Where the employee resigns, the relevant perspective is that of the employer who hears the words of resignation.
• The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been “really intended” at the time they are said.
• What happened afterwards is relevant, but the longer the time that elapses, the more likely it is that the evidence will not be evidence of the person’s intention at the time, but of a subsequent impermissible change of mind.
• It is a question of fact for the tribunal in each case which side of the line a case falls.

In light of the above principles, the EAT found that the tribunal had not properly directed itself and had erred in law in asking itself whether there were special circumstances that justified making an exception to the general rule, rather than applying an objective test to determine whether it would have appeared to a reasonable employer that the Claimant had really intended to resign.

What does this mean for employers?

The observations in this case provide a helpful analysis of the principles derived from the case law on resignations made in the heat of the moment. The judgment also serves as a reminder that each case will need to be considered on its individual facts, as the application of the principles will often be finely balanced.

If an employee resigns during a heated conversation, employers should carefully consider the circumstances before treating the resignation as final. Where there is any uncertainty, employers should seek legal advice before taking action.