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When is a resignation, not a resignation?

When your employee didn't mean it.

In Omar v Epping Forest District Citizens Advice, the Employment Appeal Tribunal (EAT) held that an employment tribunal erred in finding that an employee’s resignation in the heat of the moment was intended.

Facts

The employee ('O') resigned from Epping Forest District Citizens Advice (EFDCA) during an altercation with his line manager. He asserted that, in a subsequent meeting on the same day, EFDCA’s Chief Executive Officer (CEO) recognised that he wished to continue in employment and had told him to consider an offer of an alternative role. However, at another meeting, the CEO told O that his line manager no longer wanted to work with him, so his resignation would still stand. O sought to retract his resignation, but this was not accepted, and EFDCA treated his employment as terminating on one month’s notice.

An employment tribunal found that the employee had resigned and rejected his claim for unfair dismissal.

EAT decision

The EAT reviewed the case law on 'heat of the moment' resignations and dismissals.

It reinforced the position that an employee or employer who has properly given notice of termination has no right unilaterally to withdraw it.

It rejected the notion that there is a 'special circumstances exception' to the general rule that the recipient of notice should take what is stated at face value.

In this case, the tribunal had erred in law in seeking to apply the 'special circumstances exception' rather than applying an objective test to determine whether it would have appeared to a reasonable employer in all the circumstances that the claimant 'really intended' to resign.

To be effective, resignation or dismissal must be 'seriously meant' or 'conscious and rational'. This means that the speaker of the words genuinely intended to resign (or dismiss) and that they were 'in their right mind' when doing so.

The EAT decided that the Employment Tribunal had not properly considered these points and as such it was remitted back to the Employment Tribunal for further determination.

What can we learn?

  1. The giver of a notice of resignation or dismissal cannot change their mind unless the other party agrees. It is only if the resignation was not 'really intended' that it will not be effective.

  2. Words of dismissal or resignation must be construed objectively in all the circumstances of the case by the normal rules of contractual interpretation.

  3. The circumstances that may be considered include 'absolutely anything' that was 'reasonably available' to the parties 'that would have affected how the language used would have been understood by a reasonable bystander'.

  4. 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; where the employer dismisses, the relevant perspective is that of the employee.

  5. What must be apparent to the reasonable bystander in that position, is that the other party used words that, when construed objectively by normal contractual principles, constitute immediate dismissal or resignation (if 'summary') or immediate notice of dismissal or resignation (if 'on notice'). It is not sufficient if the party merely expresses an intention to dismiss or resign in future.

  6. The dismissal or resignation must have been 'seriously meant', 'really intended' or 'conscious and rational'. This speaker of the words must have genuinely intended to resign (or dismiss) and also to be 'in their right mind' when doing so. That does not mean that it needs to be a rationally thought-through or sensible decision.

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