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From time to time, we come across a situation where the employee has chosen to resign in
circumstances which could be described as the heat of the moment. In other words,
seemingly without having thought it through, perhaps in anger or as part of a flippant or
throwaway comment and the employer is quite happy to see them go. In these situations,
the key question is whether it would have appeared to a reasonable employer in all the
circumstances that the claimant "really intended" to resign.
This was just what happened in the recent case of Omar v Epping Forest District Citizens
Advice. The employee resigned during a heated conversation with his manager and then
later tried to take back his resignation but his manager refused to agree to this and the
employee’s employment ended and he claimed unfair dismissal.
In the first instance, the employment tribunal found that the resignation should stand and that
the employee had indeed resigned from his employment. However, on appeal the EAT
disagreed and concluded that the Tribunal should have applied an objective test to
determine whether it would have appeared to a reasonable employer at the time the words
were uttered whether the claimant "really intended" to resign. The case was therefore
ordered to be re-heard before a fresh employment tribunal.
At the same time, the EAT chose to review and summarise the earlier cases concerning
‘heat of the moment’ resignations and their guidance is a useful aide to employers who may
find themselves in a similar situation in the future. Here are some factors to consider:
• Once an employee has clearly resigned this resignation cannot be retracted without
agreement by the employer.
• When assessing the circumstances and the employee’s words of resignation, you
should do so objectively and take into account the overall context in which they were said
and understood by a reasonable bystander. The manager involved in the conversation in
which the resignation was tendered, arguably in the heat of the moment, may well not be the
best person to look at the situation dispassionately.
• The subjective understanding of the manager (or anyone else from the employer or
acting on their behalf) to whom the resignation was delivered is relevant but ultimately
should not determine the conclusion to be reached.
• There must be an actual resignation and not just a suggestion from the employee
that they may resign in the future.
• The person receiving the resignation must believe that it was seriously meant to
amount to a genuine decision by the employee to leave his employment and that was what
they really intended.
• What happens after the resignation has been made can be relevant but the more
time that passes before any attempt by the employee to retract the resignation, the more
likely it is that it is reasonable for the employer to rely on it.
It is also important to add that every case like this will be determined on its own facts and so
making sure that events are clearly recorded at the time and any advice sought is done so
promptly is key to managing the potential risk of a successful claim of unfair dismissal.
circumstances which could be described as the heat of the moment. In other words,
seemingly without having thought it through, perhaps in anger or as part of a flippant or
throwaway comment and the employer is quite happy to see them go. In these situations,
the key question is whether it would have appeared to a reasonable employer in all the
circumstances that the claimant "really intended" to resign.
This was just what happened in the recent case of Omar v Epping Forest District Citizens
Advice. The employee resigned during a heated conversation with his manager and then
later tried to take back his resignation but his manager refused to agree to this and the
employee’s employment ended and he claimed unfair dismissal.
In the first instance, the employment tribunal found that the resignation should stand and that
the employee had indeed resigned from his employment. However, on appeal the EAT
disagreed and concluded that the Tribunal should have applied an objective test to
determine whether it would have appeared to a reasonable employer at the time the words
were uttered whether the claimant "really intended" to resign. The case was therefore
ordered to be re-heard before a fresh employment tribunal.
At the same time, the EAT chose to review and summarise the earlier cases concerning
‘heat of the moment’ resignations and their guidance is a useful aide to employers who may
find themselves in a similar situation in the future. Here are some factors to consider:
• Once an employee has clearly resigned this resignation cannot be retracted without
agreement by the employer.
• When assessing the circumstances and the employee’s words of resignation, you
should do so objectively and take into account the overall context in which they were said
and understood by a reasonable bystander. The manager involved in the conversation in
which the resignation was tendered, arguably in the heat of the moment, may well not be the
best person to look at the situation dispassionately.
• The subjective understanding of the manager (or anyone else from the employer or
acting on their behalf) to whom the resignation was delivered is relevant but ultimately
should not determine the conclusion to be reached.
• There must be an actual resignation and not just a suggestion from the employee
that they may resign in the future.
• The person receiving the resignation must believe that it was seriously meant to
amount to a genuine decision by the employee to leave his employment and that was what
they really intended.
• What happens after the resignation has been made can be relevant but the more
time that passes before any attempt by the employee to retract the resignation, the more
likely it is that it is reasonable for the employer to rely on it.
It is also important to add that every case like this will be determined on its own facts and so
making sure that events are clearly recorded at the time and any advice sought is done so
promptly is key to managing the potential risk of a successful claim of unfair dismissal.
Please get in touch if you have any questions regarding the issues discussed in this article.
E: help@jma-hrlegal.co.uk / T: +44 (0)1252 821792
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