Heat of the moment resignations

Our clients sometimes find themselves in a situation where an employee resigns after a heated exchange with their manager. Over the years the law has had to grapple with the question of what is a ‘heat of the moment’ resignation which an employer should allow to be retracted and when an employer can hold that the resignation has been properly accepted. In the recent case Omar vs Epping Forest District Citizens Advice, the Employment Appeal Tribunal (EAT) looked at this question.

Omar vs Epping Forest District Citizens Advice

Facts of the case

In the case the employee resigned during a heated discussion with his manager. He had previously verbally resigned twice before but these had not been accepted. On this occasion he again tried to retract his resignation, arguing that it had been in the ‘heat of the moment’. The employer disagreed and his employment ended. The employee claimed unfair dismissal. The Tribunal initially found that the Claimant had resigned. However, the EAT found that the Tribunal had not correctly considered all of the facts and ordered the case to be reheard.

In its decision the EAT helpfully then set out some key principles to consider when there are heat of the moment resignations:

• No matter how it is communicated, consideration must be given to whether objectively it would have appeared to the reasonable employer that the Claimant ‘really intended’ to resign (the “reasonable bystander test”). What the resigning person subjectively believed to be the case is almost irrelevant.
• Once proper notice of resignation has been given, it can only be retracted with the other party’s agreement.
• There is a “special circumstances” exemption to heat of the moment resignations, where in appropriate cases, the employer should afford the employee a period of “cooling off” before acting on the resignation. However, this exemption does allow an employee to unilaterally retract their notice of resignation. This exemption is only relevant in that it is an opportunity for an employee to satisfy their employer that they never intended on resigning in the first place.
• If an employee changes their mind after resigning, then this would not be sufficient. What must be apparent to the reasonable bystander in the position of the recipient of the words is whether the resignation was “seriously meant” or “really intended” or “conscious and rational”.

In some respects, the facts of the case are unimportant. The true value of this recent case is the summation of principles on heat of the moment resignations. The question an employer needs to ask themselves is not what the employee intended when communicating their resignation, but what the reasonable person would make of their intention when communicated. The reasonable bystander, in the position of the recipient, must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.