The workplace can be a stressful environment and sometimes tensions between colleagues may run high. So, what should an employer do when an employee resigns in the heat of the moment amidst an argument with their manager but later retracts their resignation? This was considered by the Employment Appeal Tribunal (EAT) in the recent case of Omar v Epping Forest District Citizens Advice.
Background
The employee, Mr Omar, resigned from his employment in the heat of the moment during an altercation with his manager. In another meeting later the same day, he informed the CEO that he wished to continue his employment, which the CEO seemingly accepted. A few days later, the CEO informed Mr Omar that his manager no longer wished to work with him, so his resignation would stand. The CEO asked him to confirm his resignation in writing. Mr Omar responded with a written communication formally withdrawing his resignation instead. This was not accepted by his employer and instead they treated him as dismissed with one month’s notice.
Mr Omar brought a clam for unfair dismissal and wrongful dismissal, claiming he had not resigned. The tribunal found in the employer’s favour, holding that he had resigned.
EAT decision
The EAT allowed an appeal. It held that the tribunal should have looked at the exact words of resignation objectively. They should have considered whether a reasonable bystander would have considered that the resignation was "seriously meant", "really intended", or "conscious and rational". The EAT held that evidence as to what happened after a purported resignation is admissible where it is relevant and casts light, objectively, on whether the resignation was "really intended" at the time. They also clarified that once given, notice cannot be unilaterally retracted. The giver of the notice cannot change their mind unless the other party agrees.
The EAT has ordered that the case be freshly considered in a new tribunal hearing.
Comment
This is an important reminder to employers that they cannot assume that verbal resignations by employees are always valid, particularly if they are given in the heat of the moment. Employers need to consider the exact words used and consider in all the circumstance whether the notice was "really intended".
Azrah Ahmed