Has an employee ever said something they don’t mean in anger or frustration? Or said they’ll resign, when everybody knows they don’t mean it?
And, have you ever been tempted to take it as a perfect opportunity to accept their resignation? Or have you ever said “you’re fired” but relented quickly after you calmed down?
These are not uncommon situations. And, we probably all know of employees who threaten to resign on a weekly basis. But a recent case, Omar v Epping Forest District Citizens Advice has given some real clarity on how to treat such situations.
It is important as it comes from an Employment Tribunal Appeal (EAT), and is likely to set a clear legal precedent for future cases. The real lesson from the case is that if it doesn’t look like a resignation, then you probably can’t treat it as such. Likewise, the employee can’t treat as unfair dismissal something said in the heat of the moment, that was clearly not meant.
The case revolves around a claimant, Omar, who resigned during a tense interaction with his Manager, and subsequently attempted to retract his resignation. He claimed that his decision was made impulsively in the ‘heat of the moment.’
Despite this attempt to retract, his employment was terminated, leading Omar to file for Unfair Dismissal. Initially, the Tribunal sided with the employer, stating that Omar had indeed resigned. However, this decision was appealed.
The EAT found the Tribunal’s reasoning to be flawed, and sent the case back to a new Tribunal for reconsideration. So, while it has not said Omar was unfairly dismissed, it has provided significant guidance on how to interpret ‘heat of the moment’ resignations (and dismissals).
This guidance is crucial for both employers and employees to understand the legal implications of impulsive decisions or outbursts that are made under duress or in a highly emotional state.
Key Points:
- Irrevocability of Resignation: First of all, once a resignation is properly and effectively given, it cannot be unilaterally withdrawn. Once you have genuinely resigned or dismissed someone, you cannot retract it unless the other party agrees.
- Objective Assessment of Resignation Words: Resignation statements should be evaluated objectively, considering all circumstances of the case. Crucially, this includes the test; would a “reasonable bystander” interpret this as a genuine resignation or dismissal?
- Importance of Context and Reasonable Bystander’s Perspective: The context surrounding the resignation, including factors influencing how the language used would be understood by a reasonable bystander, is crucial. This might include the subjective understanding of the recipient, but it is not the sole deciding factor.
- Clarity of Intention to Resign: The resignation must be clear and unambiguous. It’s insufficient if the party only expresses an intention to resign in the future. The recipient must understand that the speaker is actually resigning at that moment, and it must appear ‘seriously meant’ or ‘conscious and rational’ from a reasonable bystander’s perspective.
- Assessment of Intention and Subsequent Actions: The Tribunal must assess whether the words of resignation appeared to be ‘really intended’ at the time they were said. Post-resignation actions are relevant but become less significant over time, potentially indicating a change of mind rather than the original intention.
The EAT’s guidance in Omar v Epping Forest District Citizens Advice provides a comprehensive framework for both employers and employees to understand and navigate the complexities surrounding ‘heat of the moment’ resignations and their legal consequences.
It might appear to be the perfect opportunity to accept such a resignation from an awkward character, but be very careful. The background, the situation and the tone, as well as the crucial question “Did they really mean it?” have to be asked.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.
