Heat of the moment resignations – where are we now?
22 January 2024
In Omar v Epping Forest District Citizens Advice, the Employment Appeal Tribunal (EAT) reviewed existing authorities on notices of resignation (or dismissal) given in the ‘heat of the moment’. The EAT provided clarity on the approach tribunals should take to such cases in the future.
Facts of the case
During an altercation with his line manager on 19 February 2020, Mr Omar resigned from his employment with Epping Forest District Citizens Advice (EFDCA) in the ‘heat of the moment’.
Mr Omar asserted that in a subsequent meeting on the same day, he met with EFDCA’s CEO and explained that he had not in fact intended to resign and wished to continue in his employment. He said that the CEO had accepted this and told Mr Omar to consider an offer of an alternative role. Mr Omar had given his notice in similar circumstances on at least one prior occasion but had always been invited to reconsider and ultimately had done so.
However, at a meeting with the CEO on 21 February, Mr Omar was told that his line manager no longer wanted to work with him and his notice of resignation would stand. EFDCA treated Mr Omar’s employment as terminating on 18 March, deeming that he had given his one month’s notice when he resigned during the altercation with his line manager.
Mr Omar brought claims for unfair and wrongful dismissal, arguing that he had not resigned and his employment should not have terminated on 19 March. The employment tribunal dismissed his claims, finding that Mr Omar had properly given notice of resignation during the altercation on 19 February. The ‘special circumstances exception’ that sometimes applied to a resignation in the heat of the moment did not apply and accordingly there had been no dismissal.
The EAT allowed Mr Omar’s appeal, finding that the tribunal had incorrectly applied existing authority and had focused on the wrong issues of fact in reaching its decision. The case was remitted to be reheard by a new tribunal.
The EAT conducted a comprehensive analysis of previous authorities on this subject and produced some guiding principles to be considered when examining whether a notice of resignation (or dismissal) given in the ‘heat of the moment’ will stand. It concluded that the ‘special circumstances exception’ does not exist; the same rules must apply to all resignations and dismissals:
- The words used when a notice of resignation or dismissal was given (or allegedly given) must be judged from the objective perspective of the reasonable bystander in the position of the person to whom the words were said. For the notice to be valid, the conclusion must be that:
- the words used constituted words of immediate resignation or dismissal (or immediate notice of resignation or dismissal); and
- the resignation or dismissal was ‘really intended’, ‘seriously meant’ or ‘conscious and rational’. The speaker must be perceived to have been in their ‘right mind’ and genuinely wanting to resign.
If the notice was not ‘really intended’, it will not be effective.
- Once validly given, a notice of resignation or dismissal can only be retracted with the agreement of the party to whom the notice was given. Such notices cannot be unilaterally retracted.
- However, events following the resignation may be admissible insofar as they are relevant and cast light on whether the giver of the notice objectively ‘really intended’ it.
- In the vast majority of cases, it will be clear that the words used were ‘really intended’ and no further analysis will be required. There is no expectation for a tribunal to even consider whether the words were ‘really intended’ unless one of the parties expressly raises that point during proceedings, or fairness dictates that the tribunal raises the point itself.
- These rules also apply to written notices, but it will be more difficult to demonstrate that a written notice was made and given in the ‘heat of the moment’ as written notices necessarily require a higher degree of thought and planning which is more likely to demonstrate that the giver of the notice ‘really intended’ to resign or dismiss.
In the present case, the tribunal had not considered whether it would have appeared to the reasonable employer that the claimant has ‘really intended’ to resign. It had not determined, amongst other things, the exact words used by the claimant, or how he appeared at the time.
The Birketts view
The rigorous analysis undertaken in this judgment and the principles emerging from it provide a welcome point of reference for tribunals dealing with future claims arising from resignations/dismissals in the ‘heat of the moment’.
As a result of this decision, a resignation in the heat of the moment cannot be disregarded simply because it is deemed that there were ‘special circumstances’ which served to invalidate it. Instead, the question of whether the resignation stands must be answered by conducting a detailed factual analysis of the circumstances and determining whether it was ‘really intended’ at the time it was given, judged from the perspective of a reasonable employer.
The EAT itself noted that the application of the principles in practice will require a detailed examination of the facts of each case and a careful balancing act, particularly when considering evidence arising after the fact and whether such evidence proves that a resignation was not intended, or it is simply evidence of a change of heart from the employee. If an employee genuinely intended to resign but later changes their mind, this will not operate to ‘cancel out’ the fact of their resignation.
By consolidating the somewhat scattered authorities on this matter, the EAT has created far clearer guidance for tribunals when determining whether a resignation is effective, as well as providing food for thought for employers and employees.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2024.