We have all said something in haste that we later regret and wish we could retract (don’t ask, I’m not telling)! Although perhaps never more so than an employee that hastily delivers the line “I quit” and then, once calmer, wonders how exactly they are going to pay the bills. Thankfully most of us never get quite that far but ……. if you do, should it stand?
It has long been advisable to allow an employee that resigns in the heat of the moment time to cool off and reconsider. However, “heat of the moment” is not always easy to determine, nor is allowing someone time to cool off always easy advice for an employer to hear, especially if the employee in question is someone they are happy to see the back of!
The EAT has reiterated the need to allow cooling off in the judgment handed down in Omar v Epping Forrest District Citizen’s Advice (2 November 2023). The ET had previously concluded that the Claimant’s “heat of the moment” resignation, (delivered during an altercation with his line manager), should stand. However, the EAT disagreed and has remitted the case for a fresh hearing.
In its judgment the EAT helpfully reviewed the relevant authorities and whilst each case will ultimately turn on its own facts, the EAT has provided some useful guidance – applicable equally to heat of the moment resignations, and dismissals.
- Once given, notice of resignation or dismissal cannot unilaterally be retracted. The party giving notice cannot change their mind unless the other party agrees.
- Words of dismissal or resignation must be construed objectively. It is the subjective understanding of the recipient that is relevant (although not determinative). The subjective uncommunicated intention of the speaking party is not relevant.
- Would a reasonable bystander in the position of the recipient understand:
- the speaker to have used words constituting words of immediate dismissal or resignation. Expressing an intention to resign or dismiss isn’t enough.
- that the words were “seriously meant” or “really intended” at the time they were delivered. Did the person appear to really intend to resign or dismiss and appear to be “in their right mind” when doing so? So, drunken resignations at the Christmas party probably don’t count – however much you might like them to!
- What happens after the words of dismissal / resignation can be relevant, particularly in so far as those events may cast light on whether the dismissal / resignation was “really intended” at the time. Although the longer the time period the more one leans towards a change of mind rather than evidence of intent at the time the words were spoken.
- The same rules apply to written words of resignation / dismissal as to spoken words.