Heat of the moment | Dismissals and resignations

The Employment Appeal Tribunal (EAT) in the case of Omar v Epping Forest District Citizens Advice has clarified the approach employment tribunals should take in determining when words used in the heat of the moment lead to an effective dismissal or resignation. 

Brief facts of the case

Mr Omar was employed by Epping Forest District Citizens Advice. On 19 February 2020, Mr Omar during an altercation with his line manager resigned from his employment ‘in the heat of the moment’. 

Mr Omar sought to retract his resignation, however, his employer refused to accept the retraction and therefore his notice of resignation stood, and his last day of employment was the 18th of March 2020. 

Mr Omar brought claims against his employer for unfair dismissal, alternatively constructive unfair dismissal and wrongful dismissal on the basis that he believed he had not resigned. 

The Employment Tribunal found that Mr Omar has resigned. The Employment Tribunal dismissed all Mr Omar’s claims and Mr Omar subsequently appealed to the EAT. 

The decision of the EAT

Mr Omar’s appeal was granted as it was found that the Employment Tribunal had erred in law in the application of existing authority. The case was remitted to a fresh tribunal to be reheard. 

The EAT concluded that: 

1.  There is no such thing as the ‘special circumstances exception’.
2. When notice has been properly given, there is no unilateral right to withdraw it. 
3. The question of whether the words used amounted to dismissal or resignation has to be determined objectively, in accordance with normal rules of contractual interpretation. 
4. The words are to be judged from the perspective of the reasonable bystander in the position of the recipient of the notice. The words of the speaker must:
   1. constitute words of immediate resignation or dismissal or immediate notice of dismissal or resignation; and 
   2. be “seriously meant” or “really intended” or “conscious and rational”. 
5. The objective assessment must be applied at the time which the words are uttered. This does not mean that evidence of what happened afterwards has to be disregarded, rather such evidence will be admissible if it objectively casts light on whether the resignation or dismissal was really intended or not really intended at the time. 
6. Determining whether notice of dismissal or resignation was really intended at the time is likely to be a fine line. 
7. The same rules apply regardless of whether the words used during the resignation or dismissal were spoken or written.