Heat of the Moment Resignations
As an employer, do you feel comfortable with the concept of ‘heat of the moment resignations’? Would you know what to do if an employee resigned in anger, several times, over a short period?
Here, Rosie Cowling considers the situation and interesting outcome of the recent case of Omar v Epping Forest District Citizens Advice. Rosie provides some practical guidance for employers to consider when faced with ‘heat of the moment resignations’ and suggests how best to proceed to avoid potential unfair dismissal findings.
Situation
Picture this; you write to an employee regarding their time-keeping and they respond angrily and then verbally resign. You advise the employee to calm down, and do not accept their resignation. Two days later, the same employee becomes angry again regarding a different issue, and verbally resigns for the second time. Again, you ask the employee to calm down, and do not accept their resignation. After a period of calm, some 14 days later, following a different issue, the employee verbally resigns for the third time. This time you do not try to talk them round (you’re fed up!); however, 4 days later, the employee emails you to retract their resignation, saying it was made in ‘the heat of the moment’.
Question
As an employer, what course of action would you take? Is the retraction effective or is it too late?
Legal position
These are the facts of a recent case (Omar v Epping Forest District Citizens Advice) in which the employer, Epping, decided to proceed with the resignation and determine Mr Omar’s employment. The Employment Tribunal endorsed Epping’s approach; however, when Mr Omar appealed, the Employment Appeal Tribunal reached a different conclusion. The EAT found that the Tribunal had been wrong to conclude that Mr Omar, who had resigned in anger three times within three weeks, intended to resign when looked at objectively. They, therefore, found that Mr Omar had been unfairly dismissed.
In reaching this conclusion, the EAT provided some helpful, practical guidance for employers to consider when faced with ‘heat of the moment resignations’, and how best to proceed to avoid potential unfair dismissal findings:
- Employers should consider the words of the resignation objectively, with detachment from the facts of the matter.
- The employers’ understanding of the words used is relevant, but not determinative.
- What is determinative, is whether what was said would have appeared to a reasonable employer or bystander to have demonstrated a real intention to resign. In other words, taking a step back was the resignation ‘seriously meant’ or ‘conscious and rational’?
- Evidence of what happens or is said after the resignation can be relevant to the objective assessment.
- The longer the time lapse between the ‘resignation’ and the retraction, the more likely it is to be found that the resignation was regrettable (i.e. a change of heart), rather than not being a resignation at all.
- This guidance is equally applicable to written and verbal notices of resignation. That said, a written notice would indicate a greater degree of consideration, which would increase the likelihood that a reasonable bystander would determine that it was the employee’s intention to resign at the time.
Each case will be determined on its own facts but, as this case shows, whether something said (and potentially repeated) by an employee in the heat of the moment will amount to a resignation or not, can be finely balanced.
If you find yourself faced with this type of tricky situation, please do get in touch as the Torque Law team are on hand to provide pragmatic support and guidance throughout these types of intricate matters.
If you are interested to read the EAT Judgment in full, please click here.