On occasion, a member of staff may get into an argument with a colleague or their employer that may result in the employee resigning during a heated exchange.
With temperatures running high, it might be tempting to accept the resignation in no uncertain terms, but rushing into that could risk a claim on the basis that the employee did not really intend to resign, and that by accepting their ‘resignation’ it means they have been ‘dismissed’.
Where the employee has two years’ service, they could claim unfair dismissal and, even with less than two years’ service, there could still be a risk of a discrimination claim.
Case study
A recent employment appeal tribunal case has given some guidance on how such resignations should be viewed.
Ordinarily, a resignation cannot be unilaterally retracted by the employee. So, the employee cannot normally change their mind unless the employer agrees.
Words used for the resignation should be judged objectively in context of what led to the resignation and from the view of the reasonable bystander.
Ask yourself, taking into account the dispute, would an independent bystander agree the employee intended to actually resign? What matters is what was said.
What the employer understood is also relevant, but not conclusive. It must be clear the employee intended to resign with immediate effect. If the employee is behaving irrationally and/or is in a heated exchange when they resign, this can mean the resignation was not intended.
Whether or not the resignation was intended should be assessed at the time the words were said. What happens afterwards may show that the resignation was not really intended, and so will not be valid.
However, if subsequent evidence shows the resignation was intended, but the employee has changed their mind and would like to stay, the resignation will be valid.
The tribunal did say the distinction between these two cases is likely to be fine, so it would need to be assessed carefully. Circumstances that may suggest the resignation was not really intended include if the employee was angry or is behaving out of character. These factors do not automatically mean the resignation was not intended, but they can throw doubt on the validity of the resignation.
The above principles apply to both written and verbal resignations. Although written resignations usually involve a degree of thought, making it potentially less likely to conclude they were not intended, care should still be taken in rushing into accepting these.
One way to manage any risk of a ‘heat of the moment’ resignation is to offer the employee the chance to retract their resignation and offer to deal with any concerns separately as a formal grievance.
Get support
When faced with such a resignation it is always best to seek advice from NFU CallFirst on 0370 8458458, before discussing the resignation with the employee.
