Heat of the moment resignations: Tribunals must consider whether an employee who resigns in the heat of the moment 'really intends' to resign

Heat of the moment resignations: Tribunals must consider whether an employee who resigns in the heat of the moment "really intends" to resign

Published 12 December 2023

In this case the EAT found that a tribunal made a mistake by not asking the core question of whether, viewed objectively an employee 'really intended' to resign. Instead, the tribunal incorrectly asked itself whether there were 'special circumstances' that justified departure from the general rule that an employer is entitled to rely on words of resignation in accordance with their plain and natural meaning.

The Facts

On 19 February 2020, Mr Omar resigned from his employment with Epping Forest District Citizens Advice 'in the heat of the moment' during an altercation with his line manager, Ms S, about his holiday dates. During this altercation among other things he said: "that's it, from today a month's notice". Mr Omar had a meeting later that same day with CEO, and made it clear that he wished to continue in employment. The CEO told Mr Omar to consider an offer of an alternative role.

Two days later, on 21 February, Mr Omar had a follow up meeting with the CEO, who told him that Mr Omar's line manager no longer wanted to work with him. Mr Omar asserted that he was told 'before you say anything, Ms S has decided that she cannot work with you and therefore your resignation will stand'. He was asked to confirm his resignation in writing, which at the time, he said he would do, but instead he sought to formally retract his resignation. Mr Omar's retraction was not accepted and his employment was treated as terminating one month from his 'heat of the moment' resignation on 19 February.

Mr Omar brought a tribunal claim for unfair and wrongful dismissal on the basis that he had not resigned, but had been dismissed and the situation fell within the so-called 'special circumstances exception'. Mr Omar said this had been recognised in case law as "although an employer is normally entitled to rely on words of resignation in accordance with their plain and natural meaning, there were 'special circumstances' that could oust the application of the general rule."

The tribunal found that that Mr Omar had brought his employment to an end by his resignation on 19 February and there was no dismissal during the altercation on 19 February. Mr Omar's words 'intended to convey his intention to resign' and 'that the words were so understood by his line manager'. There was a dispute as to precisely what words Mr Omar had used, but the tribunal found the words used were unequivocal and clearly intended to amount to a resignation. Furthermore, there was no immediate retraction, despite the opportunity to retract in meetings on the same day and two days later. The ET also noted that Mr Omar had expressly agreed to put his resignation in writing. The ET found that while Mr Omar had not been offered another position, he had genuinely believed that he was being offered another position, which he declined.

Mr Omar appealed successfully to the EAT. Key to the EAT's decision to uphold the appeal were:

• there is no such thing as the 'special circumstances exception'.
• once given, the notice cannot be unilaterally retracted; so the giver of the notice cannot change their mind unless the other party agrees.
• words of dismissal or resignation (or words that potentially constitute dismissal or resignation), must be construed objectively in all circumstances in accordance with normal rules of contractual interpretation. The words used are to be judged from the perspective of the reasonable bystander in the position of the recipient of those words.
• the dismissal or resignation must be 'seriously meant', or 'really intended', or 'conscious and rational'. Evidence as to what happened afterwards may be relevant and cast light, objectively, on whether the resignation/dismissal was 'really intended' at the time.
• the tribunal had not made findings of fact about whether it would have appeared to the reasonable employer that Mr Omar had 'really intended' to resign.
• the tribunal should have determined:

1) the exact words Mr Omar used or how he appeared at the time;

2) what had been discussed in the meeting later that same afternoon, including whether the meeting had ended with it being apparent to the CEO that Mr Omar had not 'really intended' to resign; and

3) what the CEO had said at the beginning of the meeting on 21 February.

The tribunal took Mr Omar's agreement to put his resignation in writing at the end of the meeting on 21 February as evidence that he had really intended to resign. However, the agreement to put his resignation in writing would look very different if the situation was that the CEO had in law dismissed him at the beginning of the meeting and then 'jostled' him into resigning such that everything that followed was merely a discussion between the parties as to whether he should be allowed to retract that resignation.

The EAT ordered that the case be remitted to a fresh tribunal for a rehearing.

What does this mean for employers?

The difference between a case where resignation / dismissal was not 'really intended' at the time and one where there has been an impermissible change of mind is likely to be a fine one. This case shows that it is a question of fact for the tribunal in each case which side of the line the case falls.

Omar v Epping Forest District Citizens Advice

Public link

Please use the above public link if you want to share this noodl on another website.