Our employee resigned…or did they?

When an employee resigns ‘in the heat of the moment‘, it is good practice for an employer to provide the employee with the opportunity to withdraw words of resignation after they have calmed down.

In the recent case of Omar v Epping Forest District Citizens Advice, the Employment Appeal Tribunal (‘EAT’) found that the Employment Tribunal (‘ET’) got it wrong when it considered whether there were ‘special circumstances’ which justified a departure from this general rule.

Facts

There was a dispute between Omar (‘the Employee’) and Epping Forest District Citizens Advice (‘the Employer’) about how the employment relationship had been terminated. The Employee brought claims for unfair dismissal and, alternatively, constructive unfair dismissal and wrongful dismissal. The Employer argued that the Employee had resigned from his position and his resignation was not in response to a repudiatory breach of contract by the Employer.

Finding

The EAT confirmed that the correct legal test to be applied by an ET when deciding whether the employee used words that, when construed in accordance with normal contractual principles constituted words of resignation, is to consider the situation objectively from the perspective of the reasonable employer and whether objectively it would have appeared to the reasonable employer that the employee did intend to resign.

This case highlights that words of dismissal or resignation must be considered objectively in all the circumstances. The words used in a dismissal or resignation situation are to be judged from the perspective of a reasonable bystander who is in the position of the receiver of the words of dismissal or resignation.

As such, the test to be applied is whether that reasonable bystander believed that the resignation was ‘really intended’ at the time the notice was given. The ‘special circumstances’ test applied by the ET is not the correct test to be used in the circumstances.

Once notice to terminate the employment relationship is given, it cannot be unilaterally retracted by the party giving it. Therefore, it is important that this issue of whether notice to resign or dismissal was effectively given is properly determined on the particular set of facts. As the ET had applied the ‘special circumstances’ test rather than the legal test outlined above, it also failed to properly determine findings of facts relevant to this matter such as the relevant circumstances surrounding the ‘resignation’.

The matter was remitted to a fresh ET for a full rehearing.  

What can we take away from this case?

If an employee resigns in the heat of the moment, it is important to evaluate the circumstances objectively from the position of a reasonable employer as, if a reasonable employer would be of the view that the employee did not resign, the employer’s subsequent conduct may constitute a dismissal or entitle the employee resign and claim constructive unfair dismissal.

If you require assistance in assessing whether an employee ‘really intended’ to resign, please do contact a member of the Employment Team.