What constitutes a valid resignation?

In most cases it will be clear when an employee has resigned from their job. However, when a resignation is uttered following a tense workplace dispute the position may be less clear. Sometimes employees regret being overly hasty and try to retract their resignation, further complicating the situation. This article examines some of the instances in which the validity of a resignation may be called into question, and what employers can do.

Form of notice

An employee’s resignation should be clear and unambiguous. Where this is not the case, and you treat an employee as having resigned, a tribunal may find that the employee has been unfairly dismissed. This was the case in Cope v Razzle Dazzle Costumes where an employee said “I’m done” to a manager before leaving the workplace. The tribunal found this did not show a clear and unambiguous intention to resign, and the employee succeeded in her claim for unfair dismissal. If you believe that an employee has resigned, but their words or actions could be interpreted differently, you should follow up with them to confirm their intentions.

A resignation can be oral or in writing unless the contract of employment specifies otherwise. If the employee gives notice orally, but their contract requires notice to be written, you should tell them to put their resignation in writing. Their notice period will start to run from when their resignation was communicated in writing.

Heat of the moment resignations

Even where an employee’s resignation is clear and unambiguous, you should exercise caution if their resignation was given immediately after a dispute, or when they were clearly upset. Accepting a “heat of the moment” resignation too quickly may also lead to a claim for unfair dismissal. This was the case in Robert S Rae v Wellhead Electrical Supplies Limited when the tribunal found that the employer acted unreasonably when it accepted a director’s resignation without giving him a cooling off period. The Court of Appeal has outlined some “special circumstances” which, if present, may indicate that an employer should not rely on an otherwise clear resignation. These include:

• An immature employee;
• A decision taken in the heat of the moment; and
• An employee being jostled into a decision by their employer.

If any of these special circumstances are present, best practice is to give the employee an opportunity to calm down and consider their decision. This does not have to be long; one or two days should be sufficient. After this time you should confirm with the employee whether they truly intended to resign.

Retracting a resignation

Once a resignation has been validly given, it is effective even if you have not “accepted” it. There is no right for the employee to retract their resignation unless there is something in the contract to the contrary. If an employee does regret their resignation, you may allow them to have their job back at your discretion.

Steps employers can take now

You should review your employment contracts to ensure they specify that notice must be given in writing. Requiring a written resignation helps ensure that the resignation is unambiguous and can also help avoid “heat of the moment” resignations.

It is also helpful for employment contracts to include a clause specifying when written notice will be deemed to be effective. For example, that a written notice sent by first class post is deemed delivered on the second business day after posting. It should also state whether notice delivered by electronic means, such as email or text message will be effective.

If you need advice on whether an employee’s resignation was valid, or would like us to review the termination clauses in your employment contracts, you can get in touch with the Employment Team at employment@warnergoodman.co.uk or by calling 023 8071 7717.