A worker who lost his tribunal claim for unfair dismissal after a ‘heat of the moment’ resignation has had this decision remitted back to another hearing by the Employment Appeal Tribunal.
In the case of Omar vs Epping Forest District Citizens Advice (EFDCA), Mr Omar spoke to his line manager after he had received a letter about his poor timekeeping. He said he was angry about the letter and resigned, his manager advising him to calm down and explaining that his resignation could not be accepted.
On the same day, Omar claimed that the CEO of the organisation had told him to consider an offer of an alternative role, and then some days after that, the CEO had told him his resignation would stand.
Omar tried to retract his resignation, arguing that it had been in the heat of the moment, but EFDCA refused, and treated this as his one month notice period.
Omar then brought a claim for unfair and wrongful dismissal, arguing that his case fell within a “special circumstances exception” – something that had been established in the 1981 case of Sothern v Franks Charlesy & Co.
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In that case, the court ruled that although an employer could normally rely on unambiguous words of resignation, there could be special circumstances where this might not apply, such as if the words were spoken in the heat of the moment.
Omar lost his initial tribunal, which ruled that he had in fact resigned. The Employment Appeal Tribunal has now disagreed with this original reasoning and remitted the case back to tribunal.
The EAT gave a number of reasons why courts would reconsider the case: that a notice of resignation cannot be unilaterally retracted; that words of resignation should be considered objectively in all circumstances; and that circumstances and their influence on a claimant’s language should be taken into account.
It argued that, if a reasonable bystander (typically the person on the receiving end of the words) felt that the resignation was “seriously meant”, “really intended” or “conscious and rational” then it is implied the speaker is resigning. An expression of intending to resign in the future might not, however.
The EAT also found that the tribunal had erred in law by asking whether there were special circumstances, rather than applying an objective test of whether the words had really been intended.
Its judgment said: “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 in accordance with normal rules of contractual interpretation.
“The subjective uncommunicated intention of the speaking party is not relevant; the subjective understanding of the recipient is relevant.”
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