All employers dread one particular workplace scenario – a huge row in the office, an employee utters the fatal words “I quit!” and storms out. Then a few hours (or days) later, when things have cooled down, the employee reappears and says that they did not mean it and want to come back and carry on working. What should the employer do?
rradar solicitor Richard Beschizza takes a look at the options available.
Can an employee retract a resignation?
Generally speaking, an employee who resigns cannot just withdraw their resignation because they have had second thoughts about their decision. It is usually up to the employer whether they choose to accept that retraction. The use of phrases such as “I resign” or “I quit” generally make the employee’s meaning eminently clear.
However, an employee who resigns in the heat of the moment, when they were angry or upset may not have made a rational decision to terminate the employment and may well regret this once they have had the chance to cool down.
In these circumstances, the employer has two options and it is important to assess the position from a commercial as well as legal perspective before making a choice.
The first option is for the employer and employee to allow a ‘reasonable period of time’ to pass before the matter is addressed.
This allows the employee the opportunity to retract their resignation after they have had time to calm down. It also allows the employer, if the resignation was done with ambiguity, to check with the employee – preferably in writing – whether they are sure about their decision and to require them to provide a written resignation letter.
If the employer does not allow an employee to retract a heat-of-the-moment resignation or seek confirmation following a resignation where the intent is ambiguous, they may be at risk of an unfair dismissal claim as a tribunal could conclude that the employee has not resigned, but rather has been dismissed by their employer.
Looking back, we can find a significant number of dismissal cases where an employee resigned in the heat of the moment and that resignation was accepted, whereas the employer should have given them time to cool off. However, even with this proviso, the length of the cooling-off period also has a bearing on the case.
In Ali v Birmingham City Council [2008] EAT 0313/08, Mr Ali resigned suddenly and under pressure. The employer gave him half an hour to reconsider and once that time was up, he confirmed that he still wanted to resign. Four days later, having clearly changed his mind, he attempted to withdraw his resignation, but the employer refused to accept the withdrawal. When the case went to law, the Employment Appeal Tribunal said that four days’ delay clearly indicated that it was not a ‘heat of the moment’ decision and that the employer had given him a reasonable opportunity to reflect on his decision.
The second option open to employers is, of course, to leave it. Probing an employee for more detail before accepting a heat of the moment resignation inevitably gives greater scope for the employee to seek to withdraw their resignation, and many employers therefore prefer to take the risk and see what happens.
The decision taken will, to a large degree, depend on what has led up to the resignation and whether there are any underlying potential issues which caused it, such as alleged discrimination or whistleblowing which need addressing.
The employer will need to carefully assess both the situation itself and their knowledge of the employee, considering both:
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the effect on the business if the employee stays and
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the likelihood of them bringing a claim if they do not,
to help decide on the course of action to be taken moving forward.
A tribunal case in 2019 (Mr Robert S Rae v Wellhead Electrical Supplies Ltd: 4110014/2019) highlights a couple of issues worth noting. The tribunal said that although it was a “general rule” that once an employee has used “unequivocal and unambiguous” words of resignation, an employer can accept the resignation, there were “special circumstances” where it would be risky for the employer to rely on the resignation without conducting further investigation – such as words “expressed in temper”. Other tribunal judgments have covered provocation or coercion by an employer, or the effects of the employee’s personality – such as stress-related issues, as was the case with Mr Rae. A further circumstance in this case was the desire of two other directors to be rid of Mr Rae, which was held by the Tribunal to have coloured the way they handled the resignation.
The judgment also noted that Rae’s decision to resign was not made in writing, which was a requirement of the company. Employers should therefore ensure that their staff handbook and employment contract wording match the position they wish to take on resignations and how they are handled.