Can a resignation given in the “heat of the moment” be taken back?
The general rule: effective notice cannot be unilaterally withdrawn; however, a “heat of the moment” resignation is an exception. In such cases, an employer who does not allow a reasonable opportunity for the employee to reconsider their decision before accepting a resignation at face value may risk an unfair dismissal claim.
In the recent Employment Appeal Tribunal - Omar v Epping Forest District Citizens Advice EAT 132 key principles for resignation to be effective in the “heat of the moment” were revisited.
A valid resignation: once notice is given validly, neither party can refuse or withdraw without agreement from the other. That said, resignations given in the “heat of the moment” are an exception to this rule, although it should be remembered that this is viewed very narrowly by the courts.
In the Omar v Epping case, the parties had a disagreement, during which the Claimant said: “that’s it, from today, a month’s notice”, words which his employer interpreted as his notice to resign.
The employer requested that his notice be put in writing, but the following day the Claimant wrote to his employer asking that his resignation be retracted as it was given in the “heat of the moment”. His employer refused and treated his employment as terminating with a month’s notice.
The case was referred to the Employment Appeal Tribunal which set out the following helpful principles:
· Notice of resignation cannot be unilaterally retracted;
· Words of resignation must be construed objectively in all the circumstances;
· The intention of the speaker is not relevant;
· Would an objective bystander reasonably conclude that the employee resigned; and
· It must be apparent to the reasonable bystander (in the position of employer) that:
o the words used constitute that of resignation,
o The resignation was seriously meant,.
Conclusion: This case is a useful reminder that employers should be mindful when accepting resignations given mid argument. An employer should provide a reasonable opportunity for the employee to consider their decision, or they may risk an unfair dismissal claim. To reiterate, even if the words spoken were unambiguous, Courts will look objectively at whether they can be construed as an intention to resign.
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Posted on 11/21/2023 by Ortolan