We’ve all said things we didn’t mean, at times. However, when it comes to words that could be construed as a ‘resignation’, this could have serious legal consequences.

Last year, I wrote a blog on lessons on resignations from the Currygate affair and ‘Sir Beer Korma’.

To remind ourselves, a resignation is a unilateral serving of notice by the employee which invokes their contractual right to end their employment which then triggers their notice entitlement. Ideally, it should be in writing and be clear about the employee’s intentions to leave the organisation. Of course, in reality, resignations are not always in writing, and not always clear about the employee’s intentions.

In that blog, we advised to avoid knee-jerk reactions if an employee 'accidentally' resigns in the heat of the moment. This wording comes from the case of Sothern v Franks Charlesly and Co [1981] IRLR 278 where the Court of Appeal held that although an employer is normally entitled to rely on unambiguous words of resignation in accordance with their plain and natural meaning, there were ‘special circumstances’ that could oust the application of the general rule, such as:

• An immature employee.
• A decision taken in the heat of the moment.
• An employee being jostled into a decision by the employer.

This has been a long-established legal understanding as the exception to the general rule that the recipient of notice should take what is stated at face value. However, this has now been thrown into question by an Employment Appeal Tribunal ruling in the case of Omar v Epping Forest District Citizens Advice [2023] EAT 132. 

Case Outline

Mr Omar resigned from his employment ‘in the heat of the moment’ during an altercation on 19 February 2020 with his line manager, Ms Skinner. Mr Omar asserted that in a subsequent meeting on the same day, the CEO of the organisation, Ms Anyanwu, recognised that he wished to continue in employment and had told him to consider an offer of an alternative role. However, at a meeting on 21 February, the first thing Ms Anyanwu said to Mr Omar was that Ms Skinner had decided that she no longer wanted to work with him, so his resignation would still stand. 

Mr Omar was asked to confirm his resignation in writing, which he confirmed he would do. However, Mr Omar did not confirm his resignation, but instead sought formally to retract it. The employer refused to accept Mr Omar’s retraction and treated his employment as terminating on one month’s notice from 19 February.

In proceedings for unfair dismissal and wrongful dismissal, Mr Omar’s case was that he had not resigned. He argued that the situation fell within the so-called ‘special circumstances exception’, referred to from the case above.

The employment tribunal concluded that Mr Omar had brought his employment to an end by his resignation on 19 February 2020 and, accordingly, there was no dismissal.

 Mr Omar appealed to the EAT.

The EAT allowed Mr Omar’s appeal, remitting the case to a fresh employment tribunal.  However, helpfully for us, it laid out the following principles for considering resignations;  

• Resignations should be considered objectively; did the employee really intend to resign as judged by a reasonable employer at the time the words were uttered?  
• There is no such thing as a special circumstances exception – the same rules apply in all cases where a resignation is tendered. 
• There is no mechanism for a ‘change of heart’; only if the resignation was not ‘really intended’ or the employer agrees with the ‘change of heart’ will it cease to be effective. This will obviously take some consideration; did the language used make it clear that the employee wanted to end the employment either with or without notice? A threat to resign in the future will not be sufficient. The intention to resign might not be a reasonable or sensible one but provided the language is clear that they intend to terminate the employment, the resignation still stands. 

The EAT principles provide key guidance although as most HR practitioners will attest, resignations can be complex, messy, and often angry affairs. Sometimes they are worth salvaging and it’s key to remember that a resignation can be withdrawn at any time with both parties’ consent. However, on the times that they aren’t worth salvaging leaning on this guidance will be key to moving forward and letting the employment contract terminate. 

Please do contact us if you have any queries arising from this case or need specific advice on a similar matter.