The recent Employment Appeal Tribunal (the “EAT”) decision in the case of Omar v Epping Forest District Citizens Advice has resulted in some helpful guidance from the Employment Appeal Tribunal in relation to heat of the moment resignations.
The facts of the case
Mr Omar worked for Epping Forest Citizens Advice as an Advice Session Supervisor. Over the course of several weeks, Mr Omar had been in a heated dispute with his employer, stemming from a letter sent to him by the CEO that warned Mr Omar about his timekeeping. During the course of this dispute, Mr Omar had on two occasions verbally resigned. On both occasions, Mr Omar’s line manager had refused to accept his resignation.
A couple of weeks after the second verbal resignation, Mr Omar’s line manager asked him about his holiday dates. Mr Omar became angry, swore at his line manager and said “that’s it, from today a month’s notice” and that he was “done with the organisation”. On this occasion, his resignation was accepted and later that day the CEO requested that Mr Omar put his decision to resign in writing. Mr Omar agreed that he would do this, but did not in fact go on to do so.
Four days later Mr Omar emailed the CEO to inform her that he wished to retract his resignation on the basis that it had been tendered in the heat of the moment and that he had not really meant to resign. The employer refused to accept the retraction of the resignation and Mr Omar’s employment terminated on one month’s notice, in accordance with his verbal resignation four days previously.
Mr Omar’s unfair dismissal and wrongful dismissal claim
Mr Omar brought a claim for unfair dismissal and wrongful dismissal, on the basis that he did not accept he had resigned. The employment tribunal disagreed with Mr Omar and found that his verbal resignation had been effective.
Mr Omar appealed to the EAT. The EAT found that the employment tribunal had been wrong in its application of the law and that it had failed to adequately consider the question of whether Mr Omar’s verbal resignation had been effective. The EAT has sent the case back to the employment tribunal for a full rehearing.
Heat of the moment principles
In its judgement the EAT set out the key issues to take into account for determining the effectiveness of both heat of the moment resignations and dismissals:
- A notice of resignation or dismissal, once effectively given, cannot unilaterally be retracted – the other party would need to agree to any retraction.
- Words of dismissal or resignation need to be looked at objectively. The subjective intention of the person giving notice is not relevant, while the subjective understanding of the recipient is relevant but not determinative.
- It is not enough for the party giving notice to merely express an intention to dismiss or resign in the future – it has to be clear to the reasonable bystander, in the position of the recipient, that they are giving notice now.
- The reasonable bystander, in the position of the recipient, would need to understand that the dismissal or resignation was “seriously meant”, “really intended” and “conscious and rational”.
- The point in time at which the objective assessment must be carried out is the time at which the words were said.
- Evidence as to what happened afterwards can be considered but only if it is relevant and casts light, objectively, on whether the resignation/dismissal was “really intended” at the time.
- There will often be a fine line between a case where a resignation of dismissal was not “really intended” at the time, and one where someone did really intend to resign/dismiss at the time but has gone on to have a change of mind. It will be a question of fact in each case as to which side of the line the case falls.
What does this mean for schools?
This is a really helpful case, as it sets out a clear set of rules to help determine whether a resignation or dismissal given in the heat of the moment will stand. Staff in schools are under a lot of pressure and emotions can sometimes boil over. It will often be the case that an employee who resigns in the heat of the moment will want to retract their resignation once they have calmed down, and by applying the principles laid down in this case, schools can determine whether or not they are entitled to refuse to allow a retraction.
How can Moore Barlow help
Disputes with employees require careful management and if any schools would like advice on how to manage a challenging situation with an employee. We have the expertise and experience to support independent schools of all sizes and profiles including groups of schools, on a wide range of issues including, Employment and HR advice. To find out more or to discuss your situation, please contact the Independent schools team.
