It is not uncommon for tempers to become frayed within the workplace. However, an employee who resigns in the "heat of the moment" may not have made a rational decision to terminate the employment. An employer that does not allow an employee to retract a heat of the moment resignation may be at risk of an unfair dismissal claim.

But what is relevant when deciding whether a resignation (or a dismissal) was made in the heat of the moment. This was considered in the recent EAT case of Omar v Epping Forest District Citizens Advice.

Facts of the case

In this case the employee resigned during a heated discussion with his manager. He had previously verbally resigned twice before but these had not been accepted. On this occasion he again tried to retract his resignation, arguing that it had been in the ‘heat of the moment’. The employer disagreed and his employment ended. The employee claimed unfair dismissal. The Tribunal initially found that the employee had resigned. However, the EAT found that the Tribunal had not correctly considered all of the facts and ordered the case to be reheard.

In it’s decision 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 employee ‘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”.

In Conclusion

In some respects the facts of the case are unimportant. The true value of this recent case is the summation of principles on heat of the moment resignations. The question an employer needs to ask themselves is not what the employee intended when communicating their resignation, but what the reasonable person would make of the intention when communicated. The reasonable bystander, in the position of the recipient, must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.

These same principles also apply to heat of the moment dismissals.

As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

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