Heat of the Moment Resignations (or Dismissals)

The recent case of Omar v Epping Forest district Citizens Advice has highlighted the difficultly in assessing whether a resignation, or dismissal was truly 'heat of the moment'.

In this case the employee resigned during a heated discussion and later tried to retract his resignation, but the employer disagreed so, on the face of it, his employment ended. The employee then claimed unfair dismissal.

The Employment Tribunal found in favour of the employer, agreeing that the employee had resigned. However, on appeal, the Employment Appeals Tribunal (EAT) disagreed and, in doing so, provided some guidance.

A 'heat of the moment' resignation arises where, in anger or under extreme pressure, an employee resigns abruptly. The same can apply to a dismissal under similar circumstances.

Once resignation is given, it cannot be retracted unilaterally by the employee and requires the agreement of both parties.

The EAT made the following points:

• The words used, as well as the circumstances surrounding the resignation, should be viewed objectively.
• The words used should be capable of being easily understood by a reasonable observer as 'seriously meant', 'really intended' and 'conscious and rational'.
• It should be considered whether the recipient of the resignation understood it to be genuine at the time.
• It must be expressly stated that the person is resigning and not simply threatening to resign at a later date.
• Events between the resignation and subsequent retraction should be taken into consideration (as well as the lapse of time), to decide whether a resignation was not intended to be genuine at the time they were spoken, or whether the employee has simply changed their mind.
• It is a question of fact, for the Tribunal in each case to determine, which side of the line a 'heat of the moment' resignation (or dismissal) falls.

The EAT remitted this case to a fresh Employment Tribunal (i.e. a full re-hearing). It also commented that the case was finely balanced against the principles it had set out.

Comment:

Employers are advised to be alive to these situations, particularly when a member of staff, who they might wish to see the back of, resigns in such circumstances. The temptation to refuse a request to retract a 'heat of the moment' resignation has potentially damaging consequences.