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Unfair Dismissal and ‘heat of the moment’ resignations

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Was it reasonable for an employer to treat an employee’s words said in the ‘heat of the moment’ as a resignation?

No, says the EAT in Omar v Epping Forest District Citizens Advice available here.

Background: The end of the employment relationship can be fraught and it is not always easy to work out who really ended it — particularly when it all takes place in the heat of the moment. The risk is that employers can end up dismissing the employee by:

  • Using words which are (or can be perceived as) a dismissal.
  • Not allowing an employee to return to work because they have used words which are (or the employer perceives as) a resignation.

This can leave the employer facing an unfair dismissal claim (if the employee has over two years’ service).

Facts: The employee, Mr Omar, was employed by Epping Forest District Citizens Advice Centre.  On 3 February 2020, the employer’s CEO wrote to Mr Omar about his timekeeping. Mr Omar was unhappy with the letter and verbally resigned to his line manager, Ms Skinner. Ms Skinner told him to calm down and indicated that she would not accept his resignation.

On 5 February 2020, Mr Omar became angry again about another matter, and resigned again, this time giving one month’s notice. Ms Skinner responded by advising Mr Omar to calm down and again said she would not accept this resignation.

On 19 February 2020, Mr Omar became angry for a third time when Ms Skinner queried some holiday dates which Mr Omar believed he had booked. He swore and shouted at Ms Skinner and used words of resignation. In particular, he said he was ‘done with the organisation’ and that Ms Skinner should ‘tell who you need to, but I’m off because I’ve had enough’.

Ms Skinner met with Mr Omar and the CEO later that day to discuss the incident. The employee’s evidence about this meeting was that they discussed whether he could work together with his manager and that he was offered an alternative role (the implication being that his resignation had not been accepted). The employer’s evidence was that the purpose of the meeting was to ensure that Mr Omar did not leave on bad terms and was about how he would work with his manager during his notice period.

On his next working day, Mr Omar met with the CEO again. She told him that Ms Skinner had confirmed that she could no longer work with him and that his resignation would stand. Mr Omar (according to the employer) replied that he could not work with Ms Skinner either and that therefore his resignation still stood. At the end of this meeting it was decided that Mr Omar would put his resignation in writing.

However, Mr Omar did not do so. Instead he wrote to explain that he wished to withdraw his resignation as it was given in the heat of the moment. The employer refused to permit the retraction of his resignation and treated his employment as terminating on one month’s notice.  Mr Omar brought a Tribunal claim for unfair dismissal.

Tribunal decision: The Tribunal dismissed Mr Omar’s claim and said that he had resigned.  Mr Omar appealed.

EAT decision:  The EAT disagreed with the Tribunal’s decision as it had not applied the correct legal principles to the case.  The case will therefore be remitted to a fresh Tribunal to conduct a full rehearing. This means the claim for unfair dismissal will be reheard and possibly a different outcome will be reached.

However, the EAT helpfully took the opportunity to review the authorities on ‘heat of the moment’ resignations and gave the following guidance (which is also relevant to ‘heat of the moment’ dismissals):

  • If an employee gives effective notice of their resignation, they cannot retract it (unless by agreement with the employer).
  • To decide whether resignation is effective, the words of resignation should be considered objectively in all the circumstances of the case.
  • The circumstances that may be taken into account include anything that would have affected the way in which the language used would have been understood by a reasonable bystander.
  • The subjective intention of the employee is not relevant (i.e. what was going through their head when they communicated the words of resignation) – the key is what was actually said by the employee.
  • It is not enough for the employee to say they intend to resign in future – the reasonable bystander must understand from their words that they speaker are actually resigning.
  • The reasonable bystander must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’. If an employee is highly emotional then this could lead to a suggestion that their words were not genuinely intended.
  • The types of circumstances that might suggest a resignation was not really intended include where the employee is angry and overhasty, is behaving out of character, has a relevant mental impairment, is immature, or is under extreme pressure from another party.
  • Evidence about what happened afterwards is relevant, but the longer the time that elapses, the more likely it is that the evidence will be of a subsequent (and not permitted) change of mind (rather than of the intention at the time).
  • The same rules apply to written notices of resignation as to oral ones. However, a written notice will usually indicate to an employer a certain degree of thought and care, which will make it less likely that the employee did not intend to resign.


This is a really good reminder of the rules on ‘heat of the moment’ and also otherwise ambiguous resignations.The main takeaway is not to be too hasty to act on a resignation if the words used by the employee are ambiguous, or otherwise said in the heat of the moment or under emotional pressure. This is particularly important where the employee has more than two years’ service and can bring an unfair dismissal claim or there is a risk of other claims, such as discrimination.

If the words were ambiguous – whether said in the heat of the moment or otherwise – double-check with the employee what they meant and ask them to confirm their resignation in writing.

If the words were unambiguous, then under normal circumstances the employee cannot withdraw their resignation and you can act on it straight away. However, if there is a chance these unambiguous words were said in the heat of the moment, allow a cooling off period of one to two days.

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