A recent case about resignation is a reminder to employers that they need to act in a logical, sensible and responsible way when employees appear to indicate their intention to leave.

The employer must establish whether this is a genuine resignation, with all of the consequences that this involves, or a heat of the moment comment.

This is crucial because so long as a resignation is clear and unequivocal, it cannot be retracted later without the employer’s consent. Especially if the employer has clearly responded, acknowledging that the employee has chosen to leave.

In other words, the employee’s actions can be treated as a definitive act of leaving, so it is then up to the employer to decide whether they decide to accept, or not, the employee’s retraction.

But plenty of cases show that where it is not quite clear that someone has actually resigned, especially if there is no resignation letter, the employer will not be given the benefit of the doubt if they simply accept this as a resignation.

In Cope v Razzle Dazzle Costumes Ltd exactly this situation arose. The claimant had been with the company for over three years, and was in dispute with the employer over a disciplinary matter, and also in ill health.

As she usually did, when she was about to go away on holiday, she dropped the keys to her company vehicle into the office. As she did so, she was heard to say “I’m done” with a hand gesture that suggested that this was it, she was finished.

Without any further investigation, the Manager she saw told the company she had resigned. The company took this at face value, and despite a subsequent sick note to explain why she was not returning to the office, they refused to take her back. She did not return to work and filed a case for unfair dismissal.

The Employment Tribunal noted that the facts were disputed in the case, but felt that the employer had done nothing to establish the intentions of the employee, nor whether it was a genuine resignation. As a result, they were not entitled to rely on it, and their refusal to allow her to return amounted to unfair dismissal.

Indeed, the Employment Tribunal concluded that the employer had grasped the opportunity during a troublesome situation to rid themselves of her.

A number of cases over the years have underlined the point that the employer has a duty to establish that a resignation is genuine and intended. It is such a big step for an employee, the employer cannot just rely on a heat of the moment comment, but must take steps to establish the truth of the matter.

And it is always sensible for the employer to allow a short cooling off period before checking in again to make sure that the employee really does tend to resign.  The same applies if the employee simply goes absent without leave, AWOL.

Another common problem arises when the employee produces a written resignation with a whole load of complaints.  The temptation, especially if they have short service, is to just accept the resignation and ignore the concerns raised.

This is when you need professional support to decide on how best to respond to the grievances contained within the resignation.  If the case is not handled properly, the employer could later find themselves facing an unexpected claim of constructive unfair dismissal and/or discrimination (which requires no service criteria).

And, with no decent written audit trail as to how the employer addressed the departing employee’s complaints, defending such claims will be harder to defend, as in the case described above.




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.