We have all heard of people who resign in the heat of the moment – where an employee says things they may later regret when it comes to resigning from their job. The case of Omar v Epping Forest District Citizens Advice saw the EAT explore the current legal position surrounding the retraction of a resignation made in the heat of the moment.
On 19 February 2020 Mr O resigned from his employment in the heat of the moment during an altercation with his line manager. It was Mr O’s position that in a further meeting that day the CAB’s CEO had recognised that he did not want to resign and asked him to consider the offer of an alternative role. During another meeting two days later, the CEO told Mr O that his line manager had in fact decided that she no longer wanted to work with him and was going to treat his resignation as standing.
Mr O was asked to confirm his resignation in writing which he said he would do. However, Mr O did not withdraw his resignation but in fact sought to retract it. The CAB refused the retraction and treated his employment as terminating with one months’ notice. Before the Employment Tribunal it was Mr O’s case that he had not resigned. He said that his case fell within the ‘special circumstances exception’ namely that an employer is normally entitled to rely on words of resignation in accordance with their normal meaning unless there are ‘special circumstances’ that would indicate they should deviate from the general rule. For example, did the employer notice that the employee was behaving unusually?
In the Employment Tribunal the parties to the litigation agreed that there had been previous exchanges between Mr O and his line manager where Mr O had previously threatened to resign. During the 19 February 2020 meeting Mr O had used words intended to convey his resignation and these had been understood by his line manager on their plain meaning.
These words were unequivocal and there was no immediate retraction indicating they were not meant. Mr O had also agreed to put his resignation in writing. The tribunal made a finding that Mr O had brought his contract to end by his resignation on 19 February 2020 and that he had not been dismissed.
Mr O appealed to the Employment Appeal Tribunal (“the EAT”). The EAT confirmed that there is no ‘special circumstances exception’ and that notice, once given, cannot be unilaterally retracted: the person giving notice cannot change their mind unless the other party agrees.
The EAT said that words of resignation have to be construed objectively and in accordance with the rules on contractual interpretation. This means that the words used are judged from the perspective of the ‘reasonable bystander; and the subjective intention of the person resigning is irrelevant but, the subjective understanding of the recipient is relevant, although not determinative. What this means is that the dismissal or resignation must be ‘seriously meant’ or ‘really intended’ or ‘conscious and rational.’ The admissibility of evidence after the resignation has been given may cast light on whether the resignation was really intended at the relevant time.
The EAT held that the first tribunal had not considered the relevant principles and whether it could appear to the reasonable employer that Mr O really intended to resign. The tribunal had not considered the necessary findings of fact in relation to the chronology: these included the exact words used by Mr O when he purported to resign, the second meeting later on the same day, whether Mr O had intended to resign and what was said at the 21 February 2020 meeting. The tribunal had accepted as evidence that Mr O had intended to resign when he agreed to put his resignation in writing. What was not considered was whether the CEO had dismissed him at the meeting on 21 February 2020 and then cajoled him into resigning, with everything after that simply being a discussion about the retraction of the resignation.
The offer of an alternative role was considered a red herring which had no bearing on Mr O’s resignation on 19 February 2020. The case was remitted to a fresh tribunal for a full re-hearing because the first tribunal had followed the wrong test.
This blog was written by Elizabeth McGlone, Partner at didlaw.
