Heat of the moment resignations: when is a resignation not a resignation?

Background

On 19 February 2020, Mr Omar verbally resigned from his role following a dispute with his line manager and so delivered his resignation in the heat of the moment. This resignation followed two previous verbal resignations made in the heat of the moment in the previous weeks, which his line manager had not accepted.

Mr Omar’s position was that later that same day he had a meeting with the CEO and the line manager and the CEO asked whether they could continue working together. Mr Omar said that they could and also alleged that the CEO offered him an alternative job role. However, at another meeting with the CEO on 21 February, the CEO advised Mr Omar that his line manager had decided that she could no longer work with him and that his resignation would stand. At this meeting Mr Omar agreed to put his resignation in writing. However, Mr Omar did not do this and in fact later wrote to retract his resignation. The retraction was refused and Mr Omar’s employment terminated on 18 March 2020.

Employment Appeal Tribunal

Mr Omar later appealed to the EAT. It carried out a comprehensive review of previously decided case law on this issue and found that the Employment Tribunal had not taken the correct approach in considering this case. Further, the Employment Tribunal had made “scant factual findings” as to the circumstances surrounding Mr Omar’s resignation. A thorough analysis was necessary for it to make findings such as whether or not the resignation was in fact tendered in the heat of the moment, or in a period of “emotional stress.”

The EAT remitted the case back to the Employment Tribunal for a fresh hearing, for it to consider the principles from the relevant case law and for it to make the necessary findings of fact. In doing so, the EAT reiterated the principles to consider when there had been resignations, such as Mr Omar’s, made in the heat of the moment:

• There is no such thing as the “special circumstances exception” to resignations given in the heat of the moment. What is relevant is whether the resignation was properly given and really intended in the first instance.
• Whether that notice was properly given must be considered objectively in all the circumstances of the case. The circumstances of the case are not limited and include any information available to the parties at the given time.
• The pertinent question in the case of a heat of the moment resignation is what the reasonable bystander would have understood the resigning employee’s words to have meant, including whether they amount to immediate resignation or giving of notice rather than some intention to do so at a future date and whether those words were seriously meant and really intended. The EAT clarified the decision to resign did not need to be a rational or sensible one, only one which was really intended but this inevitably requires some examination of whether the employee was ‘in their right mind’ when making the resignation.
• Once notice of dismissal or resignation is properly given, it can only be retracted with the other party’s agreement.

Comment

The helpful observations in this case will likely be matters which Employment Tribunals consider in future cases of this kind. They provide clarity that simply changing your mind about a resignation will not make a resignation void. However, the judgment does serve as a reminder that each case will, as always, need to be considered on its individual facts.

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