Q&A – Heat of the moment resignations

“We had a meeting with one of our staff members yesterday. Things got heated and they stormed out, saying that they have had enough and they are leaving. Today they have emailed me, stating that they regret what happened and that they do not want to resign. What should we do?”

This scenario is one which employers may find themselves in from time to time. Whilst an employee who has properly given their notice generally has no right to withdraw it, case law has established that in limited circumstances, an employer may not be able to rely on a resignation. If they do so, then they may face a claim for unfair dismissal.

Case Study

In Rae v Wellhead Electrical Supplies Limited an Employment Tribunal examined whether Mr Rae’s verbal resignation was correctly accepted by his fellow company directors, or whether he was unfairly dismissed further to his subsequent messages, stating that he would not be resigning.

Mr Rae had been in dispute with the other company directors over whether certain staff members should be given pay rises above the general increase being given to all employees. He confronted one of the directors, Mr Ogg, about this on 21 March 2019. Mr Rae threw his keys on Mr Ogg’s desk and shouted “I told you what was going to happen”. He then left and said to Mr Ogg “I won’t be back”. He also spoke to the other director, Mr Rastall and said to him something along the lines of “I believe I’ve just resigned”. Mr Rae went home and did not return to work that day. Two hours after Mr Rae went home, an emergency board meeting was held where it was decided that his resignation would be accepted.

The following day, Mr Rae contacted both Mr Ogg and Mr Rastall to say that he was suffering from stress and that he would not be resigning. Mr Rastall sent Mr Rae a letter the same day, stating that his resignation had been given in unequivocal terms and it had been accepted. When Mr Rae replied to dispute this, he was sent a further letter, telling him that he was no longer a director of the company and that he should not interfere with any future company business.

At the Employment Tribunal, Mr Rae’s case was that although on the face of things, he appeared to have resigned on 21 March 2019, this was in circumstances where it was appropriate to examine the context in which his words were spoken. He was suffering from stress and his words were said in anger; in the heat of the moment. Having had time to reflect on his actions, Mr Rae quickly contacted the other directors the following day to say that he was not resigning.

The Tribunal agreed with Mr Rae’s arguments and found that he had been unfairly dismissed. His verbal resignation had been given in the heat of the moment and “it would be normal practice for someone in a senior position to resign by giving written notice”. It was noted that when a former director of the company had resigned in 2011, he was allocated a ‘cooling off’ period. Mr Rae had not been given the opportunity to reflect upon his apparent decision to resign.

Conclusion

Although this case is Employment Tribunal level only and therefore not binding on other Tribunals, it is a useful reminder to employers that they should always allow a reasonable period of time to elapse before accepting a supposed resignation. What amounts to a reasonable period of time may vary from case to case, but the Employment Appeal Tribunal has previously stated in another case that this is “likely to be a day or two”. We would recommend that where an employee resigns in a heated situation, that they are allowed some time to calm down and consider their decision. If they still wish to resign then they should be asked to confirm this in writing.

Employers might also like to know whether similar exceptions apply where they have dismissed an employee in the heat of the moment. The answer is yes, but as our previous article highlights, a dismissal given prematurely and by mistake (rather than in the heat of the moment), could not be retracted.