Withdrawing a resignation

Tempers can flare in the workplace, occasionally prompting employees to take hasty action, which they may later regret. So what should an employer do if an employee resigns after a bust-up with the boss, but then has a change of heart and wishes to withdraw their resignation? Case law shows that in a situation where this happens, the employer may face repercussions if it accepts the resignation at face value.

Q If an employee resigns after a bust-up with the boss, what right do they have to withdraw the resignation?

A The basic position is that an employee does not have the right to unilaterally withdraw their resignation once given. The employer is entitled to consider any such request made by an employee and may decide to allow the employee to retract the resignation. However, caution may have to be exercised if, in resigning, the employee used words or actions that are ambiguous, or the employee has unambiguously resigned, but has done so in the heat of the moment – possibly suggesting they have no genuine desire to leave their job.

The case of Kwik-Fit (GB) Limited v Lineham is authority for the proposition that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intention. ‘Special circumstances’ may include particular pressures on the employee or the employee’s personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

If the resignation was in the heat of the moment and there are special circumstances, the employer should allow a cooling-off period to ascertain if any other matters arise to cast doubt on whether the employee really meant to resign. A reasonable cooling-off period may only be a day or two, but this will depend upon the facts of the individual case. If the employer fails to allow a cooling-off period and immediately accepts the resignation, then a tribunal may conclude that the employee had not in fact resigned, but was dismissed by the employer.

Q What if an employee who is not particularly valued wants to withdraw their resignation?

A There is no additional requirement on an employer to allow a disliked employee to retract their resignation. The rules that are set out above still apply.

Q Should the employer allow a cooling-off period following a resignation?

A In most cases, no – an employer can safely accept a resignation. However, there may be repercussions if an employer immediately accepts without question a resignation following a bust up. See comments above.

Q Will this type of resignation have an impact on an employee’s references?

A Any reference provided by an employer should be accurate, fair and not misleading. If, when giving a reference, an employer wants to give a reason for the employment relationship terminating, it would ordinarily be wise to state that the employee simply resigned.

Q How much do the feelings of the employer count in these situations?

A If the employer does not want to accept the resignation of the employee, the employee cannot be compelled to retract their resignation. Either party has the right to bring the employment relationship to an end. Inevitably, the harder situation will be when an employer is relieved that an employee has resigned, but the employee wishes to retract the resignation. Provided the resignation was unambiguous and there are no special circumstances as described previously, the employer is free to heave a sigh of relief. Even if the employee were able to retract the resignation, there may be a question as to whether the nature of the bust-up may have made it impossible for the working relationship to continue and disciplinary action may be required.

Q What happens when an employee’s resignation is ambiguous?

A If an employee storms out of a meeting shouting ‘I’m off’, it may be unclear whether they have resigned or merely ended the meeting.

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In determining what the employee meant, it is necessary to consider the circumstances. If there is still ambiguity, ask how a reasonable employer/employee would have understood the words in the circumstances. Exceptionally, conduct alone may amount to a resignation. However, the courts generally reject such concepts as self-dismissal – when an employee fails to contact their employer. In such circumstances, employment will usually continue until the employee is dismissed or expressly resigns.

James Upton, partner, Hill Dickenson