How should an employer respond to an employee resignation?
The advice-line frequently gets queries on resignations and although each case turns on its own facts, the general guidance below gives some clarity on matters.
Where an employee communicates a clear and unequivocal decision to resign, an employer cannot reject the resignation as a resignation is a unilateral act of ending the employment relationship. The employer can discuss with employee to see they are willing to change their mind.
A resignation can be given orally or in writing (as per employment contract). Where the resignation suggests the employee is unhappy over some workplace matter then before the resignation is acted upon it would be prudent to explain to the employee that they should not take any hasty decision in the heat of the moment that they might regret. Thus, be prepared to give a period of grace to reconsider the decision to resign and offering to address alleged matters of concern informally or via grievance procedure.
Employment tribunal
The period of grace depends upon the facts, ideally 48 hours plus but in Ali v Birmingham City Council [2008] EAT 0313/08, an upset employee resigned suddenly and was given a thirty-minute period to reconsider his decision, after which he re-confirmed his resignation but 4 days thereafter, he decided to withdraw his resignation and the employer refused to agree.
The Employment Appeal Tribunal decided that this was not a “heat of the moment” resignation as it was genuinely intended and unambiguous, the employer was able to act upon it at face value and had given the employee a reasonable opportunity for reflection.
Despite the findings in the Ali case, there was an Employment Tribunal decision in 2020 where a managing director resigned “in the heat of the moment.” He was held to be unfairly dismissed as his decision to resign was related to an angry outburst over a dispute on staff salary and a day after the incident the employee had informed his employer that he was stressed and had not attended to resign and was seeing his doctor. The employer stood by the resignation, which the Employment Tribunal found had been unreasonable and tainted by the Directors’ “considerable ill feeling” towards the employee.
Breach of contract
Where an employee refuses to work their resignation notice, that would be a breach of contract and where the employer suffers a financial loss by the lack of notice or no notice then the employer can look to pursue an action via the civil courts to recover the financial loss.
When a resignation is freely and unequivocally given with an end date and acted upon by the employer, the employee cannot then withdraw the resignation otherwise by agreement of employer (see Chelmsford College Corporation v Teal UKEAT/0277/11/CEA) nor can the employer decide to change the date of resignation otherwise by agreement (Horwood v Lincoln County Council EAT 0462/11.
Where an employee gives an intention to resign in the future but no date, it is imperative that employer discusses matters to try to get a formal indication of a date to act upon as otherwise an intention to resign may not be the same as actual resignation as in Ely v YKK Fasteners (UK) Ltd 1994 ICR 164. The employee indicated that he was looking to leave in the future to work in Australia, but no date was given and the job in Australia did not happen and employee wished to remain but the employer regarded the communication as a resignation. The employment tribunal decided that there was no resignation as termination date could not be established on the facts but did find, there was a dismissal for ‘some other substantial reason’, this decision was upheld by the Court of Appeal.
In the context of the above, the employer must not act in a manner that suggests the employee was forced to resign as that could give rise to constructive dismissal claim.
The above guidance is for general information purposes only and should you require assistance and guidance on the matter please contact our Legal/HR advice-line.
