The EAT’s recent decision in Omar v Epping Forest District Citizens Advice is a useful reminder of the way in which Tribunals should approach the issue.

Mr Omar had twice in the past, “in the heat of the moment” verbally resigned, but after he calmed down, the employer said that they did not accept his resignation and he remained employed. On 19 February 2020, he again got angry and used words that appeared to amount to a verbal resignation. There was a further discussion that afternoon. The Claimant’s evidence was that this was about whether he could work together with his manager and that he was offered an alternative role (the implication being that his resignation had not been accepted). The Respondent’s evidence was that the purpose of the meeting was to ensure that Mr Omar did not leave on bad terms and was about how he would work with his manager during his notice period.

On his next working day, it was found that Mr Omar was told that his manager could not work with him and his resignation would stand. He was asked to put his resignation in writing and agreed to do so. However, he did not in fact do so and instead wrote explaining that he wished to withdraw his resignation as it was given in the heat of the moment. His employer refused to permit the retraction of his resignation, and treated his employment as terminating on one month’s notice.

Mr Omar claimed unfair dismissal and the primary issue was therefore whether he had been dismissed by his employer, or had resigned.

The Tribunal found that he had resigned and his claim was dismissed. He appealed to the EAT.

The EAT found that the Tribunal had adopted the wrong approach in determining the issue and the case would therefore be remitted to a fresh tribunal to be reconsidered. The EAT pointed out that it was understandable that the Tribunal had not applied to the correct thought process “given that there has not prior to this judgment been any case which has drawn together the principles as I have done in this judgment, but nonetheless the result is that the Tribunal in this case has not directed itself by reference to those principles.”

The EAT therefore set out the following principles:

• A notice of resignation or dismissal cannot unilaterally be retracted.
• Words of dismissal or resignation must be construed objectively in all the circumstances.
• The subjective uncommunicated intention of the speaker is not relevant (i.e. it does not matter whether or not the employee intended to resign).
• The subjective understanding of the recipient is relevant but not determinative (i.e the fact that the employer understood him to have resigned is a factor to consider but the ultimate question is whether the objective bystander would reasonably have concluded that he had resigned).
• What must be apparent to the reasonable bystander in the position of the recipient is that:
  o The speaker used words that constitute words of dismissal or resignation; and
  o The dismissal/resignation was “seriously meant” or “really intended” or “conscious and rational” (i,e whether the speaker appeared genuinely to intend to resign/dismiss and was “in their right mind” when doing so.)
• The point in time at which the objective assessment must be carried out is the time at which the words are spoken. Evidence as to what happened afterwards might be relevant insofar as it casts light, objectively, on whether the resignation/dismissal was “really intended” at the time.

Cases of debateable resignations or resignations given in the heat of the moment are fact-sensitive and no two cases are the same, but it is helpful to have a clear indication of the principle that should be applied in determining whether there has been a resignation.