Many employers will have had experience of employees who resign in the heat of the moment, possibly following an acrimonious exchange, and then subsequently have a change of heart and seek to withdraw the resignation. We have asked Ciara Fulton how employers should deal with such situations. 


Introduction
A resignation is a unilateral act which, if expressed in clear and unconditional terms, brings a contract of employment to an end. Whether or not an employer is obliged to consider/allow a request made by an employee to withdraw their resignation once given is not straightforward. Much will depend on the circumstances of the particular case.


Special Circumstances
As a general rule, words of resignation, once communicated to the employer and accepted, cannot be unilaterally withdrawn (Riordan v War Office [1959] 3 All ER 552). However, an employer may be obliged to allow an employee to withdraw his notice of resignation depending on the context in which the decision to resign was taken.

In Sothern v Franks Charlesly & Co Ltd [1981] IRLR 278 the Court of Appeal set out the ‘special circumstances’ which might mean that an otherwise clear and unambiguous resignation could not be relied on by an employer as having that effect including:

* an “immature employee”;
* a decision taken in the heat of the moment; and
* an employee being jostled into a decision by the employer.

The nature of these exceptions was clarified in the subsequent cases of Sovereign House Security Services Limited v Savage [1989] IRLR 115 and Greater Glasgow Health Board v Mackay [1989] SLT 729.

In Sovereign House Security Services Limited v Savage [1989] IRLR 115 the Court of Appeal held that, while generally unambiguous words of resignation would lead to the conclusion that an employee has resigned, nevertheless “…in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what might appear to be at first sight”.

In Greater Glasgow Health Board v Mackay [1989] SLT 729 the Court of Session considered whether an employee, who wrote out a letter of resignation in a state of anxiety, had actually resigned. It held that “only in highly exceptional circumstances will this be justified”.


Resignation in the heat of the moment
It has long been the practice of the courts to follow the EAT’s approach in Martin v Yeoman Aggregates Ltd [1983] ICR 314 whereby as a matter of good industrial relations, an employer or employee who in the heat of the moment speaks words of dismissal or resignation, should be given the opportunity to withdraw them provided that he does do almost immediately.

If the resignation was in the heat of the moment and there are special circumstances, the employer should allow a cooling-off period to ascertain whether the employee really meant to resign. What is reasonable cooling-off period will depend upon the facts of the individual case.

The EAT in Kwik-Fit (GB) Limited v Lineham [1992] ICR 183 set out the approach to be followed if special circumstances exist: “A reasonable period of time should be allowed to lapse and, if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can be properly assumed, then such enquiry is ignored at the employer’s risk”. The EAT considered that a reasonable period of time was “likely to have a day or two”. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

If the employer fails to allow a cooling-off period and immediately accepts the resignation, then a Tribunal may conclude that employee had not in fact resigned, but was dismissed by the employer.

In McManus v Brian McCarthy Contractors UD946/2007 the EAT awarded compensation to a female quantity surveyor after her employer declined to accept her withdrawal of resignation. In that case, the employee handed in a letter of resignation after she claimed that her manager had been verbally abusing, physically threatening and bullying her over a protracted period of time. A meeting was subsequently held to discuss the situation.

The evidence given at the hearing regarding the meeting differed significantly. On the one hand, the employee alleged that at the meeting that the employer appeared sympathetic towards her and said he was not accepting her resignation. The employer, on the other hand, submitted that the employee had confused sympathy for her situation with rejection of her resignation. When the employer subsequently wrote to the employee stating that the written resignation was accepted, the employee expressed "shock and dismay" at this development.

Having considered the conflicting evidence from both sides in the case, the Tribunal found that the resignation letter had been withdrawn by the employee and had not been accepted by the employer. The Tribunal held that it was the subsequent letter from the employer referring to and confirming the earlier resignation that amounted to a letter of dismissal. As there were no fair grounds for this dismissal, it was held to be unfair.


Conclusion
Either party to the contract of employment has the right to end the employment relationship. Provided the resignation is unambiguous and there are no special circumstances as described above, the employer is free to accept the resignation as it stands. However, if special circumstances exist or the resignation is given in the heat of the moment, employers should consider allowing the employee a “cooling-off period” within which to consider their resignation.

In the current economic climate many employers are under pressure to reduce headcount, so there will be a real temptation to accept heat of the moment resignations. However, as a matter of good practice, employers should not to exploit an employee’s rash decision or ignore special circumstances relevant to the resignation. Otherwise, the greater risk is that the Tribunal may find them liable for unfair dismissal.