In Omar vs Epping Forest District Citizens Advice (EFDCA), Mr Omar was sent a letter about his poor timekeeping. He was angry about receiving the letter and told his employer that he was resigning.
He then retracted his resignation, stating that it had been in the heat of the moment. The next day, he was informed that his line manager could no longer work with him. He was asked to put his resignation in writing but did not do this. He had twice previously resigned only to retract it. On this occasion, EFDCA refused to permit him to retract.
The employee brought a claim for unfair and wrongful dismissal.
The Employment Tribunal did not uphold his claims; however, on appeal the Employment Appeal Tribunal disagreed, finding that words of resignation should be considered objectively in all circumstances; and that circumstances and their influence on a claimant’s language should be taken into account.
Case study
Our client suspended an employee pending investigation and potential disciplinary action regarding an allegation of assault. Upon being escorted from site, the employee stated that he would not come to any disciplinary meeting and would not return to work. The client sought advice from us as to whether they could just accept his verbal resignation.
We advised them to be very wary of accepting a verbal resignation in these circumstances. Whilst it might be genuine, accepting a heat of the moment resignation can lead to a finding of unfair dismissal. Where an employee resigns suddenly in reaction to something the employer has done, the employer is expected to give him / her a chance to consider and retract.
We therefore advised the client to make it clear that they were not accepting a verbal heat of the moment resignation and that if he had decided that he was definitely resigning with immediate effect, he should confirm that to them in writing. Otherwise, they would proceed with the investigation.
The employee did not confirm his resignation in writing, therefore they then invited him to the investigation meeting which he attended. Following this, he was invited to a disciplinary meeting and advised that the allegation was being considered to be potentially Gross Misconduct, therefore one outcome could be summary dismissal. He failed to attend. A second meeting was arranged which he also failed to attend. He did not notify the client of any good reason for his non-attendance.
They therefore held the disciplinary meeting in his absence and dismissed him on the grounds of gross misconduct.
Where an employee resigns in the heat of the moment, employers should be clear as to whether there has in fact been a resignation before accepting it, otherwise they run the risk of unfair and wrongful dismissal claims against them. HR Solutions can advise your clients as to whether it is safe to accept such a resignation or not, and how to address the situation if not.
