The Employment Appeal Tribunal (EAT) recently provided significant clarification on the principles related to resignation and dismissal – in particular, "in the heat of the moment" resignations. The EAT ruled that in the case of Mr R Omar v Epping Forest District Citizen Advice [2023], the Employment Tribunal (ET) erred in finding that Mr R Omar's resignation "in the heat of the moment" was really intended.

Legal background

As a general rule, notice of termination of employment, for whatever reason it is given, cannot be unilaterally withdrawn by the employer or the employee. The notice is effective to terminate employment unless the other party agrees it can be withdrawn. In Martin v Yeoman Aggregates Ltd [EAT 1983], the EAT established an exception to this rule – an employer or employee is given an opportunity to withdraw words of dismissal or resignation spoken "in the heat of the moment" (for example, during an argument) if they seek to do so immediately after they have calmed down.

Factual background

On 19 February 2020, Mr Omar, an employee of Epping Forest District Citizens Advice (EFDCA), said that he was resigning from his position during an altercation with his line manager. Mr Omar had a subsequent meeting with EFDCA's CEO where an alternative role was discussed. However, his line manager said she did not want to work with him, so Mr Omar was asked to confirm his resignation in writing. Instead, he attempted to retract his resignation, which EFDCA refused. As a result, his employment ended on a month's notice from 19 February 2020.

Mr Omar brought an ET case, claiming that he had been unfairly and wrongfully dismissed, arguing that his resignation was given "in the heat of the moment" during a dispute and that he had sought to retract it promptly. However, the ET determined that Mr Omar had intended to resign and that he did not retract his resignation immediately despite opportunities to do so. The ET also held that he had not been offered a new role and therefore his employment ended due to his resignation.

Mr Omar subsequently appealed this decision to the EAT.

The EAT decision

The EAT held that the ET had erred in its judgment by not correctly applying the applicable legal principles and failing to make adequate findings of fact. The EAT noted that, when establishing whether an employee has resigned, this should be determined objectively from the perspective of a "reasonable bystander" viewing the matter from the employer's perspective.

The EAT held that, for a dismissal or resignation to be valid, it must be "seriously meant" or "really intended" and the person giving the notice must be "in their right mind" when doing so. The EAT also noted that evidence of what happened after the resignation or dismissal could be considered, as it may shed light on whether the decision was "really intended" at the time.

The EAT allowed the appeal by Mr Omar and ordered a fresh ET hearing for this case.

Lessons for employers

For employers, the EAT judgment raises several key lessons. In particular, employers should be cautious of accepting resignations made in the heat of the moment and allow a reasonable period of time for the employee to cool down and reconsider.

The employer can accept the resignation if the employee does not retract their resignation within a reasonable period. However, if the employee retracts or seeks to retract their resignation within this period, employers should consider carefully whether the resignation was really intended in order to avoid a potential unfair dismissal claim.