Was a tribunal correct to conclude that a Claimant’s ‘heat of the moment’ resignation should stand – with the result that he could not pursue an unfair dismissal claim?

No, held the EAT in Omar v Epping Forest District Citizens Advice.

The Claimant resigned during a heated discussion with his manager. He later tried to retract his resignation, arguing that it had been in the ‘heat of the moment’. The Respondent disagreed and his employment ended. The Claimant claimed unfair dismissal. The tribunal found that the Claimant had resigned.

The EAT disagreed with the tribunal’s reasoning and remitted the case to a fresh tribunal. The EAT took the opportunity to review the authorities on ‘heat of the moment’ resignations and gave the following guidance (which is also relevant to ‘heat of the moment’ dismissals):

• A notice of resignation, once effectively given, cannot be unilaterally retracted.
• You should look at words of resignation objectively in all the circumstances of the case.
• The circumstances that may be taken into account, include anything that would have affected the way in which the language used would have been understood by a reasonable bystander.
• The subjective understanding of the recipient is relevant but not determinative.
• It is not enough if the party expresses an intention to resign in future – the reasonable bystander, in the position of the recipient, must understand from the words used that the speaker is actually resigning.
• The reasonable bystander, in the position of the recipient, must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.
• You should assess whether the words reasonably appear to have been ‘really intended’ at the point in time that they were said.
• Evidence about what happened afterward is relevant, but the longer the time that elapses, the more likely it is that the evidence will be of a subsequent impermissible change of mind (rather than of the intention at the time)
• It is a question of fact, for the tribunal in each case, which side of the line a case falls.

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