Of all of the many ways in which employment relationships end, resignations are surely one of the most common and, one would expect, one of the most straightforward. In practice, however, resignations can give rise to surprisingly complex issues.
Many of the difficulties stem from the common misconception that a resignation needs to be ‘accepted’. Giving notice to end employment is a unilateral decision. While an employer may have options as to how to treat an individual’s notice period once notice has been given, the decision whether to resign is generally the employee’s alone and can then only be retracted with the agreement of both parties. As resignation does not require employer approval, sometimes it can take place in the heat of the moment, which can be a cause of a great deal of uncertainty.
One way of trying to achieve a greater degree of certainty is to require notice in writing (as many contracts of employment now do). Even where that is the case, however, an angry or upset employee may simply walk away and, if so, they cannot generally be forced to continue performing their role. Equally, even when notice is writing, there are now arguably more options than ever as to what form that takes. If an employee resigns via WhatsApp or text message, for example, that might understandably raise questions about how serious the employee is about what they are doing.
The general position under the law has long been that, where an employee says unambiguously that they are resigning – not that they will or might resign – the employer is entitled to take that statement at face value. A genuinely voluntary resignation will not constitute a ‘dismissal’ for the purposes of an unfair dismissal claim under the Employment Rights Act 1996.
In principle, that is helpful to an employer who wishes to accept a spur-of-the-moment resignation and the reasons they might do so are obvious. Such resignations often occur at fractious moments in the relationship, often and especially when employees are faced with formal disciplinary or performance processes which employers may be just as keen to avoid. Sometimes, they reflect the reality that the relationship of trust and confidence between employer and employee has deteriorated beyond the point of return.
However, the case law has long recognised that sometimes a resignation may not be ‘rational’, ‘really intended’, or ‘seriously meant’. In the recent case of Omar v Epping Forest District Citizens Advice [2023] EAT 132, the Employment Appeal Tribunal looked at a string of cases on that issue and has now helpfully clarified that:
- an unambiguous resignation is generally binding and there is no exception for ‘special circumstances’;
- nor is it helpful to suggest that an employer is under a duty to check whether a resignation is real; and
- the key to understanding whether a resignation is ‘really intended’ is what ‘a reasonable bystander’ hearing the words would have understood.
Overall, the approach being applied is an objective one, rather than a subjective one, and it largely depends on what the circumstances were or that occurred or were said at the time, rather than what the parties later thought.
On the other hand, that does still mean that there will be occasions where a resignation is not really intended and deciding whether that is the case may not always be straightforward.
Therefore, where an employer suspects that a resignation was not genuinely meant, the wisest course is often to give the employee some breathing room and encourage them to reflect on their decision. Being overzealous in accepting a resignation could still risk an unfair dismissal claim.
The risk of unfair dismissal is not the only reason to tread carefully where impromptu resignations are concerned. Being quicker to accept a resignation from an employee with disabilities than another without them, might also give rise to a discrimination claim, for example. Practically-speaking, a slightly less hasty departure may also increase the chances of a handover of business critical information and the return of valuable employer property.
This decision in Omar also provides some helpful, indirect guidance about the possibility of ‘accidental’ resignations and dismissals. Employees and employers alike are often concerned that their actions might inadvertently terminate the employment relationship.
However, as Omar shows, unless there are unambiguous words from which a reasonable bystander would conclude that notice is being given, that should not be an issue. Nevertheless, concerns about an accidental resignation/dismissal might be a good indicator that the conversation should be on a ‘protected’ or ‘without prejudice’ basis, where the parties can speak more candidly about their relationship.
Overall, the law reflects and clearly takes into account that resignation, while often routine, is a significant and weighty act. In summary, that means that: it is difficult to resign inadvertently. When done clearly, it deserves respect; and, when there are doubts about whether it is genuinely intended, it is often worthwhile to double-check.