Hello again and welcome back to our case of the week. We are starting off the festive season with a case involving ‘Heat of the Moment Resignations’.

Last week we had our monthly newsletter for November where we looked at the new Minimum Wage Rates increasing in April 2024 and a former Man City player claiming against the club for unpaid wages. Those that missed it can find it here.

The claimant, Mr Omar, had become angry after receiving an email from his employer regarding his timekeeping. The email led to an argument between the claimant and his line manager whereby he verbally resigned; the respondent refused to accept his resignation and told him to calm down. A similar incident arose a few days later when the claimant became angry again and verbally resigned, with his manager refusing to accept his verbal resignation.

A few weeks passed without any issues, until the claimant became angry during a discussion about his annual leave which resulted in the claimant resigning in the ‘heat of the moment’. A later conversation brought to light the claimant’s wishes to continue his employment, however his line manager had decided this time she didn’t want to work with him anymore. She asked Mr Omar to confirm his resignation in writing, which he agreed to, but instead asserted he wished to retract his resignation.

The claimant argued he had been unfairly and wrongfully dismissed and the respondent argued he had resigned.

The claimant’s case was that he had not resigned and relied on the “special circumstances exception” in Sothern v Frank Charlesly [1981] that there is a duty on employers to take into account the special circumstances of the case. He argued the respondent was not entitled to assume that this was a conscious, rational decision.

The Employment Tribunal found in favour of the respondent concluding the claimant’s resignation should stand and he would be prevented from pursuing an unfair dismissal claim; the claimant appealed.

The EAT allowing the appeal on the grounds the ET had erred in law by failing to make adequate findings of fact and failing to direct itself properly in accordance with the applicable legal principles.

The EAT concluded an employee in the same position of the claimant who has resigned, is to be determined objectively from the perspective of the reasonable bystander viewing the matter from the employer’s perspective and that the subjective intention of the employee is not relevant to the issue the ET had to decide. However, what the claimant said to his employer about his intentions in the relevant period after resigning will be relevant to the objective assessment.

The EAT found the ET erred in law in asking itself whether there were special circumstances that justified departing from the general rule of applying an objective test to determine whether it would have appeared to a reasonable employer that the claimant ‘really intended’ to resign.

Another issue raised by the ET was whether the respondent had offered the claimant an alternative role. The EAT called this issue a ‘red herring’ because if the claimant had resigned, then the offer of a new role was simply an offer of a new contract and not capable of affecting the status of his resignation. An alternative role was a side issue which could not assist much with the ultimate question of whether Mr Omar had resigned.

The EAT said the ET’s decision in this case was substantially flawed and remitted the case to a fresh tribunal to conduct a full hearing and to make the necessary findings of fact to properly determine on which side of the fine line between ‘not really intending to resign’ and ‘intending to resign but changing his mind’ the case falls.

Takeaway Points

It should be noted that the EAT said this was a finely balanced case and should not be taken as an indication that either party is more likely to succeed. However, the EAT helpfully outlined the ‘reasonable bystander’ test which provides some guidance to employers as to how best to approach resignations made in the ‘heat of the moment’. It is important for employers to look at whether an employee has seriously intended their resignation or could it be put down to emotion.