The Employment Appeal Tribunal (EAT) has held in Omar v Epping Forest District Citizens Advice that when deciding whether a resignation was “really intended”, tribunals must consider on an objective basis whether it would have appeared to a reasonable employer in all the circumstances that the claimant “really intended” to resign and were “in their right mind” when they did.
Basic facts
On the morning of 19 February 2020, Mr Omar verbally resigned from his job after an argument with his manager, Ms Skinner. At a meeting that afternoon with the CEO and Ms Skinner, Mr Omar said he was offered a new role and told to go away and think about it. For her part, the CEO said no new job was offered and he was told to go away and think about how he could work with Ms Skinner during his notice period.
At a meeting on 21 February, the CEO told him that Ms Skinner had decided in the interim that she could no longer work with him. The CEO accepted his resignation at that meeting and asked him to confirm it in writing which he agreed to do. However, he emailed the CEO several days later, saying he wanted to retract it. This was refused, and his employment was deemed to have been terminated on one month's notice, effective from 19 February.
Mr Omar lodged tribunal proceedings for unfair and wrongful dismissal arguing that although employers can normally rely on words of resignation “in accordance with their plain and natural meaning”, there were “special circumstances” when that rule did not apply. Those circumstances included a situation when an employee had only resigned “in the heat of the moment” and had not, therefore, “really” intended to resign.
Tribunal decision
The tribunal rejected his claim because no such “special circumstances” applied in this case. Firstly the words he used on 19 February were unequivocal and clearly intended to amount to a resignation; secondly, he did not immediately retract them despite having the opportunity to do so on the same day as well as a couple of days later; thirdly he had agreed expressly to put his resignation in writing when asked to do so by the CEO; and fourthly he was not offered a new job (although he genuinely believed he had been) which he declined in any event.
EAT decision
The EAT allowed Mr Omar’s appeal on the basis that the tribunal had not only failed to make adequate findings of fact but had also failed to direct itself properly in accordance with the applicable legal principles. It then went on to carry out a review of earlier case law, holding that there is no such thing as the “special circumstances” exception. Instead, words of dismissal or resignation must be construed objectively to determine whether it would have appeared to a reasonable employer in all the circumstances that the claimant “really intended” to resign and were “in their right mind” when they did.
It went on to say that, in most cases where the words used objectively constitute words of dismissal or resignation, there will be no doubt that they were “really intended” and the tribunal can stop its analysis at that point. It will only have to consider the objective meaning of the words and whether they were “really intended” if one of the parties makes that claim or the circumstances are such that the tribunal should raise the issue itself.
The EAT cautioned that the difference between a case where resignation/dismissal was not “really intended” at the time and one where there has been an impermissible change of mind is likely to be a fine one. It is a question of fact in each case on which side of the line the case falls.
The EAT remitted the claim to a fresh tribunal to be reconsidered.
Comment
The judge provided a very useful summary of points to consider when assessing “heat of the moment” resignations in paragraph 97, which is worth reading here. It also contains a helpful review of earlier case law.