A recent Employment Appeal Tribunal (EAT) case dealt with the problems caused by an employee who resigned verbally, but retracted his words later. Employment law specialist Markus Schober outlines the key take-aways for independent practitioners to ensure your staff are treated fairly and professionally in the event of a disagreement.
A recent Employment Appeal Tribunal (EAT) case serves as a reminder for doctors who employ staff to handle verbal resignations with caution.
It highlights the importance of not accepting verbal resignations immediately, especially when they occur in the heat of the moment.
What happened
The claimant in the case of Omar v Epping Forest District Citizens Advice resigned verbally in the heat of the moment following an altercation with his manager. On the two previous occasions when the claimant had resigned, he had been talked back into his job.
This time, the claimant wished to retract his resignation and continue in his role – but the claimant’s manager no longer wanted to work with him and decided his resignation would stand.
The claimant brought claims for unfair dismissal and wrongful dismissal on the basis that he had not officially resigned. He argued that the situation fell within the ‘special circumstances exception’.
Claim dismissed
The Employment Tribunal concluded that the claimant had brought his employment to an end with his verbal resignation and dismissed the claims. The claimant appealed to the EAT.
It held that the question of whether an employee has resigned is to be determined objectively from the perspective of the reasonable bystander viewing the matter from the employer’s perspective.
The EAT concluded that the tribunal had not considered the factual question of whether the resignation was intended, and the appeal was therefore successful and it remitted the case to a fresh employment tribunal for a full rehearing.
There is likely to be a fine line between cases where resignation was not ‘really intended’ and cases where there had been a change of mind. The EAT acknowledged that this would be a question of fact for the tribunal to consider in each case.
‘Really intended’
In most cases where words are used that objectively constitute words of dismissal or resignation, there will be no doubt that they were ‘really intended’ and the analysis will stop there.
An Employment Tribunal will not err if it only considers the objective meaning of the words and does not go on to consider whether they were ‘really intended’, unless one of the parties has expressly raised a case to that effect to the tribunal or the circumstances of the case are such that fairness requires the tribunal to raise the issue of its own motion.
Evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation/dismissal was ‘really intended’ at the time.
Finally, the same rules apply to written notices of resignation or dismissal as to oral ones, except that a notice given in writing will usually indicate a degree of thought and care that will make it less likely that there are circumstances which, objectively, would lead the reasonable bystander to conclude that the notice was not ‘really intended’.
TAKE-AWAY POINTS FOR INDEPENDENT HEALTHCARE PROVIDERS TO CONSIDER
- This case sets out helpful guidance on resignation and dismissals, as the EAT conducted a full review of the key principles to consider when there are heat-of-the-moment resignations.
- There is no such thing as the ‘special circumstances exception’. The same rules apply in all cases where notice of dismissal or resignation is given in the employment context.
- A notice of resignation or dismissal, once given, cannot be unilaterally retracted. The giver of the notice cannot change their mind unless the other party agrees.
- Words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case.
- The circumstances that may be considered include ‘absolutely anything’ that was ‘reasonably available’ to the parties ‘that would have affected the way in which the language used would have been understood by a reasonable bystander’.
- The perspective from which the words used are to be judged is that of the reasonable bystander in the position of the recipient of the words used. Where the employee resigns, the relevant perspective is that of the employer who hears the words of resignation; where the employer dismisses, the relevant perspective is that of the employee.
- What must be apparent to the reasonable bystander in that position, objectively, is that the dismissal or resignation was ‘seriously meant’ or ‘really intended’ or ‘conscious and rational’.
This means that the speaker of the words genuinely intended to resign – or dismiss – and was ‘in their right mind’ when doing so. It does not mean that it needs to be a rationally thought through or sensible decision.
Markus Schober is an associate solicitor at specialist healthcare law firm Hempsons.
