Heat of the Moment

Most of us have probably said something in the heat of the moment which we really didn’t mean, the brain and mouth do not always function in harmony. Our Head of Employment looks at some of the implications when this happens in the workplace.

It is not uncommon for a workplace resignation to occur in these circumstances, an aggrieved employee may complain about a rule, not get satisfaction and on a stressful day blow up with “ I hate this new rule” and that they are out of here and “you can stick your job!”

If the employer regards the employee as a member of the awkward squad, then they may be happy at this development and gleefully accept this apparent resignation. Care must however be taken.

The case of Omar v Epping Forest District Citizens Advice in the Employment Appeal Tribunal (EAT) has dealt with how employers should respond. Mr Omar had been aggrieved about various matters raised with him on various occasions. On the third occasion his response coupled with some choice language included “I don’t need this organisation” and “I’m off because I have had enough.” There are many variations on this heat of the moment language.

There were some further exchanges, the key elements of which were that Mr Omar said that he had been working under pressure due to domestic circumstances and alleged that he and his boss were asked whether they could continue to work together. He also claimed that he was offered an alternative role as part of this discussion and told he could think about his position.

The employer had a different view of what was said, there was a desire for Mr Omar not to leave on bad terms and to look at how Mr Omar could work with his boss during the notice period. At a subsequent meeting it was confirmed to Mr Omar that his boss felt that she could no longer work with him, and his resignation was accepted.

Mr Omar then wished to retract his resignation as it was in “the heat of the moment”.

It is well established that once given a resignation cannot be retracted without the consent of the employer but what constitutes a reliable resignation?

The case went to the EAT where it was said that:

• The resignation should be looked at objectively, would an average person consider that the employee intended to resign.
• The understanding of the employer is relevant but not definitive. The subjective intention of the employee (what they were thinking at that moment) is not relevant, the key is what was said by the employee.
• It must be clear that the employee intended to resign and that they were in an appropriate frame of mind at the time.
• A highly emotional employee might not have intended to resign. This might also be the case with an employee with a relevant mental impairment or who was perhaps immature or was under extreme pressure from someone else.
• Evidence about what happened after resignation may be helpful in judging whether a resignation was really intended. It may be the case that the resignation was genuinely intended but the employee had simply had a change of mind afterwards. In this case the resignation would still stand.

Many of these situations are resolved sensibly. It is recognised that things are said in the heat of the moment, parties then reconcile and move on. It is also usually clear when an employee intends to resign and most will do so with a considered letter of resignation. In such a case there is unlikely to be doubt, if the employee then wants to retract the employer can say yes or no.

To avoid any mishaps with a verbal resignation in the heat of the moment, the employer should reflect, consider what was said and the circumstances. A note should be made and follow-up meetings documented. It may also be appropriate to offer the employee some time to reflect. If they still want to resign then they will confirm this in writing.

Mr Omar’s appeal was successful, the EAT concluding that the tribunal had not considered whether Mr Omar intended to resign. The case was remitted for a full rehearing.