‘Heat of the moment’ resignations – Omar v Epping Forest District Citizens Advice

Head of Employment, Kevin McKenna looks into the recent case of Omar v Epping Forest.

When there is conflict in the workplace, employees can often make hasty decisions, including resigning on the spot. These resignations are commonly described as ‘heat of the moment’ resignations, and employers can face difficulties deciding how they respond and whether the resignation should be accepted.  The recent case of Omar v Epping sets out some principles that employers should consider if they find themselves in this situation.

The facts

This case involved a dispute about how Mr Omar’s employment came to an end.

In February 2020, Mr Omar resigned from his employment in the ‘heat of the moment’ during an altercation with his line manager. Mr Omar had also previously resigned verbally on two other occasions, but these resignations had not been accepted at the time. He was invited by his employer to reconsider his position and as a result, these resignations were withdrawn.   On this latest occasion he used language like, “these are fucking bullshit… that’s it, from today a month’s notice” and he said that he was “done with the organisation” and “tell who you need to but I’m off because I’ve had enough”.

Given his previous conduct, his line manager decided she could no longer work with him. After further discussions, he was asked to put his resignation in writing. Although Mr Omar initially confirmed that he would, he failed to do so and instead sought to formally withdraw his resignation. His employer refused to permit the retraction and treated his employment as terminating on one month’s notice.

Mr Omar brought a claim in the Employment Tribunal that he had been unfairly and wrongfully dismissed as he believed he had not resigned. The Employment Tribunal found at the final hearing in January 2021 that Mr Omar had resigned, and therefore his wrongful and unfair dismissal claims were dismissed.

Mr Omar appealed this decision to the Employment Appeal Tribunal (EAT). The EAT decided that the Employment Tribunal had taken the wrong approach when coming to their decision and made material errors of law. The EAT helpfully then set out some key principles to consider when there are heat of the moment resignations:

• No matter how it is communicated, consideration must be given to whether objectively it would have appeared to the reasonable employer that the claimant ‘really intended’ to resign (the “reasonable bystander test”). What the resigning person subjectively believed to be the case is almost irrelevant;
• Once proper notice of resignation has been given, it can only be retracted with the other party’s agreement.
• There is a “special circumstances” exemption to heat of the moment resignations, where in appropriate cases, the employer should afford the employee a period of “cooling off” before acting on the resignation. However, this exemption does allow an employee to unilaterally retract their notice of resignation. This exemption is only relevant in that it is an opportunity for an employee to satisfy their employer that they never intended on resigning in the first place.
• If an employee changes their mind after resigning, then this would not be sufficient. What must be apparent to the reasonable bystander in the position of the recipient of the words is whether the resignation was “seriously meant” or “really intended” or “conscious and rational”.

The EAT decided that the Employment Tribunal had not properly considered these points and as such it was remitted the case back to the Employment Tribunal for further determination.

Commentary

This case sets out helpful principles on resignation (and dismissals). Although it does not need to be rationally thought through or a sensible decision, there does need to be an examination of whether the employee was in their right mind when they used the words which, objectively construed, constituted a resignation.  The subjective uncommunicated intention of the speaking party is not relevant; the subjective understanding of the recipient is relevant but not determinative.  In other words, if you use words of resignation, what you mean is not relevant, what your boss understands you to mean, is.

If you require assistance with an employee who has resigned, please contact Kevin McKenna.