One of the situations a union rep occasionally is to talk down members who in an emotional state wish to resign their employment. They may have been publicly demeaned by their manager, been told they are subject to yet another (from their view) baseless misconduct charge against them or been told that for the third time running they’re the only member of the team who will not be receiving a performance bonus. Many will have heard of the phrase ‘constructive dismissal’ and some have thrown it at me when asking me about their predicament and the way they have been treated could in fact amount to a constructive dismissal.
But constructive dismissal is a remedy for the privileged; when you have mortgages to pay, food to put on the table for your family and no savings to ‘tide you over’ to walk out of a job is a huge step to take, and maybe even an irresponsible one, and a one I have never recommended any member to take.
But what if someone does resign and then immediately regrets the decision? On most occasions when this stage is reached I think the point of no return has already been reached; certainly a member can ask to retract the decision and an employer can agree but if there is no agreement (see Sothern v Franks Charlesly & Co). In Sothern a solicitor announced in a meeting that “I am resigning” which the employer accepted but, on the next day, returned stating if they wanted her to leave they would need to dismiss here. The Court of Appeal found that the resignation was unambiguous and therefore, as a matter of contract, the contract of employment had been terminated.
Where a member has communicated a resignation then, unless there is an agreement by the employer then the only likely recourse is to consider whether the resignation was ‘in the heat of the moment’ and not really intended. This ‘exception’ is something of a legal maneuver since when accepted, it means not that the resignation was retracted but there was in fact no resignation in the first place and was established in Martin v Yeomen Aggregates Ltd. Where such a circumstance arises the employer should normally allow a ‘cooling off’ period although, interestingly (and counterintuitively) this will not change the date of dismissal/resignation (see The Secretary of State for Justice v Hibbert).
In Martin the plain common sense of this proposition was explained in the following way: “it is a matter of plain common sense, vital to industrial relations, that either an employer or an employee should be given the opportunity of recanting from words spoken in the heat of the moment” but this is in fact really a recantation at all as the EAT was to continue to explain:
I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgement, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.
This exception to the general rule was further clarified in Kwik-Fit (GB) Limited v Lineham when guidance was given on when an employer should not automatically ‘accept’ a resignation. Although not stating to give a comprehensive list of ‘special circumstances’ it found that there are three circumstances in which an employer should be circumspect and give a cooling off period on any resignation would be sensible:
- when the ‘resignation’ is made in the heat of the moment; or
- when the person resigning is being unduly influenced to do so by another party (normally an agent of an employer but not exclusively so); or
- where there is reason to doubt the free agency of the employee (for example, momentary or long term mental impairment).
When faced with a resignation an employer is under an obligation to respond to this within a reasonable time-frame (see Western Excavating (ECC) Ltd v Sharp although often the acceptance of a resignation will be implied). If an employee has resigned and thinks they made a mistake they must act quickly, and by quickly it will usually be hours rather than days, to clearly communicate the mistake.
Hopefully, quick action will be enough to mean the employer does not ‘accept’ the resignation. However, if not then there remains the possibility that a Tribunal may find that the resignation came within a special circumstance which means the employer’s decision not to allow the contract to remain in place is in fact not a resignation but a dismissal, with the possibility of the member pursuing an unfair and/or wrongful dismissal claim.
Kwik-Fit (GB) Limited v Lineham  IRLR 156
Martin v Yeomen Aggregates Ltd  IRLR 49
Sothern v Franks Charlesly & Co  IRLR 278
Secretary of State for Justice v Hibbert  UKEAT 0289_13_3007
Western Excavating (ECC) Ltd v Sharp  IRLR 27