There’s a common misconception that in order for a resignation to be effective, it must be accepted by the employer. In fact, the act of resigning is sufficient to terminate the contract, and any notice period would run from the date the resignation is submitted, not from the date it’s accepted.

The counterpoint to this is that once the resignation is submitted, the employee can’t withdraw it unless the employer agrees. But what about the “exception” for resignations made in the heat of the moment?

Exploring the “Heat of the Moment” Exception: A Recent EAT Case

A recent case in the Employment Appeal Tribunal (EAT): Omar v Epping Forest District Citizens Advice [2023] EAT 132, has explored this specific point and clarified existing law:

The employee in question had a history of verbally resigning, usually during disagreements with his line manager. The line manager had responded on these previous occasions by refusing to accept it.

The employee verbally resigned again during another altercation with his line manager. At a subsequent meeting later that day with the same line manager and the organisation’s CEO, various things were discussed, but the employee did not ask to retract his resignation or indicate that was a mistake. There was some discussion about an alternative role, but no formal offer was made.

At a meeting two days later, the CEO informed the employee that his manager had decided they  no longer wanted to work with him and that his resignation would still stand. The employee was asked to confirm his resignation in writing, and he said that he would. However, he didn’t do this and instead submitted a request to retract his resignation.

Legal Proceedings and Tribunal Decision

The employer refused to accept the retraction and treated his employment as terminating on one month’s notice. The employee brought proceedings for unfair dismissal and wrongful dismissal, claiming that his resignation fell within the “special circumstances exception” for resignations submitted in the heat of the moment. The tribunal found in favour of the employer, and the employee appealed to the EAT.

EAT’s Findings and Clarifications

The EAT decided that the tribunal hadn’t made sufficient findings of fact around the words, actions and intentions of the employee at the time and had been distracted by irrelevant red herrings (the discussion about another job). It allowed the appeal and sent the case back to be heard again by a different judge.

In the judgment, the EAT confirmed the two principles outlined at the start of this blog, namely that resignation doesn’t have to be accepted to be effective and once given it can’t be retracted without the employer’s agreement. It also provided some clarification of the existing case law around “heat of the moment” resignations.

Key Takeaways and Analysis

There’s a lot of analysis, but the key points can be summarised as follows:

• Despite the way it was argued in this case, there isn’t a “special circumstances exception” that means that any resignation delivered in the heat of the moment isn’t valid.
• The key is to assess whether the resignation was seriously meant or really intended. If it was, then it will be effective and could only be retracted by agreement with the employer. What this means is that each case will be specific to its own facts, and context will be crucial.
• What the employer took the words to mean will be important but won’t decide the case. The test is what a reasonable bystander, in possession of all the relevant facts and circumstances, would understand the words spoken to mean when looking at it from the perspective of the employer (the recipient of the words).
• It has to be apparent to the reasonable bystander that the employee used words that amount to words of resignation (whether immediate or on notice). An intention to resign in the future is not
• It has to be apparent that the resignation was “seriously meant” or “really intended” or “conscious and rational”. This means that the employee genuinely intended to resign and also to be “in their right mind” when doing so. Confusingly, however, it does not mean that it needs to be a rationally thought through or sensible decision.
• To succeed, the employee will have to show that objectively any reasonable bystander would understand that the words of resignation weren’t clear and unequivocal or that resignation wasn’t seriously meant or intended.
• If it’s found that the resignation was meant or intended but that the employee simply changed their mind, the resignation will stand.

This all seems clear in principle but is a very tricky distinction to draw in practice and one that ultimately only a tribunal can decide.

The same principles apply to written notice as well as verbal, but realistically, sitting down and writing a letter of resignation and then delivering it is likely to be taken as evidence of meaning and intention.

Considerations for Employers

In summary, there’s a lot of guidance here for how lawyers and the tribunals should approach this, and that is definitely helpful to a point but, it doesn’t really make judging the situation “on the ground” much easier!

The key takeaway is that there isn’t an automatic “exception” for resignations made in the heat of the moment. Each case will have to be carefully considered on its own facts to weigh up risk and whether an employee should be offered a “cooling off” period.

Lastly, the need to consider cases on their specific facts will be even more important where certain factors may be at play, for example, medical issues or disabilities.