- In the heat of the moment

Heated discussions, frank exchanges of views and “major bust-ups” can happen in even the most harmonious of workplaces, and it’s important any resultant resignation is handled carefully. All too often an employee will act in haste and storm out of the workplace, only to then change his or her mind the following day. Even if it’s a difficult and troublesome employee who is a constant drain on management time that resigned, it’s not necessarily time to crack open the champagne and issue their P45.

 Glad to see the back of them, or surprised they want to go?

In most cases, there won’t be a reason not to accept their resignation with relief. But, before you do so …. perhaps you should just consider the resignation in the same way as you would if it was someone you would be sorry to see leave, and check – is the resignation ambiguously worded or are there any hints as to why he/she has resigned? Has there been a recent dispute or grievance (particularly in relation to whistleblowing, discrimination or bullying) or changes in your business that might have acted as a catalyst to his/her resignation?

If there has, serious consideration should be given to allowing the employee to stay on, along with taking him/her through your disciplinary process to highlight the unacceptableness of his/her poor behaviour.  You must at the very least attempt to discuss with the employee what happened, not just ignore it.

The employee may well just turn up for work later or the next day, tail between his/her legs, in which case you can sit down and discuss the events with him/her and decide what, if any, action to take. If he/she does not return to work, it would be wise to check – preferably in writing – whether or not he/she is sure about the decision, and to ask him/her to provide a written resignation letter.

 Twist or stick – accept or reject?

Generally speaking, an employee who resigns cannot just withdraw their resignation just because they change their mind. Normally it is the employer’s decision, not the employee’s, as to whether or not it can be withdrawn, particularly if clear words such as “I resign” or “I quit” have been used. However, Employment Tribunals have held that where there are “special circumstances”, even apparently clear and unambiguous words of resignation should be considered in context. “Special circumstances” would include pressures on an employee (for example, bullying by a manager) as well as the employee’s own personality (e.g., an immature employee or an employee with stress and/or work-related issues).

Is that what they really meant?

Sometimes an employee’s true intentions in respect of their continued employment may be unclear. Often tied in with “heat of the moment” conversations, what should an employer do when faced with comments from an employee such as “I’ve had enough of this job” or “I’m off”?

Even though it may sometimes be tempting to simply accept an ambiguous resignation on the spot, this does leave scope for the employee to argue that they had not meant to resign and that the employer has overreacted. In these circumstances, a Tribunal would look at the facts and ask what a reasonable employer would have understood the words to mean in the circumstances.

To avoid this, employers should not immediately assume that such words amount to a resignation, and should allow some time (although rarely more than a day or two) to pass before seeking clarification of the position from the employee or asking them to confirm their resignation in writing.  A resignation does not need to be in writing to be effective, but getting an unambiguously worded resignation letter will make it more difficult for an employee to subsequently argue that he or she had been constructively dismissed.

If the employee fails to respond to the employer’s request for clarification, the employer should then write to the employee explaining their reluctance to accept his/her resignation, but confirming that they have had to do so in the absence of any opportunity to discuss it with him/her first as they have not responded to their request for clarification.  It is still important that employers investigate the circumstances surrounding the employee’s resignation and take any remedial action/s the investigation highlights as necessary.

Resignation or dismissal?

Most employers know that if an employee is “invited” to resign at the same time as being told that they have no future with the employer, this is likely to be regarded by a Court as a dismissal as opposed to a resignation – particularly where heavy-handed or oppressive tactics are used by the employer. In such circumstances, the key question to ask is who was really responsible for terminating the contract of employment. If in reality it is the employer, then the reason for termination of employment will be dismissal, not resignation.

What if the employee resigns during ongoing disciplinary proceedings? Rather than have a dismissal finding on their employment record, it is fairly common for an employee to resign during disciplinary proceedings which, for example, take place after a final warning has been previously issued. To avoid any potential arguments that he/she was left with no option other than to resign and it was in effect constructive dismissal, employers should be careful not to give any indication that a decision to dismiss has already been taken before disciplinary proceedings are concluded. Rather, employers should explain that one of the potential outcomes of the disciplinary proceedings could be the dismissal of the employee.

A calculated risk?

Whilst an employer should always assess the position from a commercial as well as a legal perspective and probing an employee for more detail before accepting a resignation inevitably gives greater scope for the employee to seek to withdraw their resignation, and so many employers may prefer to take the risk and see what happens if they just accept the resignation, they need to understand the risk they run if the employee who has resigned does then go to Tribunal.  If an employee’s intentions are unclear, if there are potential “special circumstances” or if there are suggestions of discrimination or whistleblowing in the background, this risk becomes even greater,

It would be wise, therefore, to always investigate a resignation given in the heat of the moment and, where appropriate, allow the employee to return to work.

Helen Skepper – Research and Communications Advisor
Su Allen HR

Su Allen HR helps employers by providing a range of commercially sensitive HR support that includes advice on how to handle ‘live’ issues such as this in a fair and consistent manner. Contact us on 01582 883299 if you’d like to hear more.