Heat of the moment resignations

Senior Associate Solicitor, Kate Lea, explains...

I’m not particularly ‘hot headed.’  I’m risk averse.  Measured.  Indeed, some might say I think about things a little too much! However, on many occasions during my practice as an employment lawyer I have advised clients who in the face of incredible pressure, unreasonable demands and sometimes discriminatory conduct have decided to chuck in the towel.  And yes, I admit, even I on occasion have felt compelled to do that too!  So, it was with interest that I read the recent decision of the Employment Appeal Tribunal [EAT] in the case of Omar v Epping Forest District Citizens Advice. 2023 EAT 132

Background facts

In this case the Claimant resigned during a heated discussion with his manager. The following day he tried to retract his resignation, arguing that it had been in the ‘heat of the moment’. The Respondent disagreed and his employment ended. The Claimant claimed unfair dismissal. The tribunal found that the Claimant had not been dismissed but had in fact resigned. However, the EAT disagreed and referred the matter back to the Tribunal for fresh consideration, drawing together the relevant key principles to be taken into account when considering a ‘heat of the moment’ resignation or equally dismissal.

Such factors include: 

• A notice of resignation, once effectively given, cannot be unilaterally retracted.

• You should look at words of resignation objectively in all the circumstances of the case.

• The circumstances that may be taken into account, include anything that would have affected the way in which the language used would have been understood by a reasonable bystander.

• The subjective understanding of the recipient is relevant but not determinative.

• It is not enough if the party expresses an intention to resign in future – the reasonable bystander, in the position of the recipient, must understand from the words used that the speaker is actually resigning.

• The reasonable bystander, in the position of the recipient, must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.

• You should assess whether the words reasonably appear to have been ‘really intended’ at the point in time that they were said.

• Evidence about what happened afterwards is relevant, but the longer the time that elapses, the more likely it is that the evidence will be of a subsequent impermissible change of mind (rather than of the intention at the time)

• It is a question of fact, for the tribunal in each case, which side of the line a case falls.

This case is a helpful reminder to practitioners, employees and employers of the relevant factors to consider in the case of ‘heat of the moment’ dismissals or resignations.  A tribunal will undertake a careful analysis of the background facts of ‘that’ case before making a determination.

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