A resignation is a unilateral act which, if expressed in clear and unconditional terms, brings a contract of employment to an end. The issue of withdrawing a resignation once given is not straightforward and much will depend on the circumstances of the particular case.

In general, an employee does not have the right to unilaterally withdraw his/her resignation once given. However, it appears clear from case law over the years that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken.

Earlier this year, the Employment Appeals Tribunal awarded compensation to a female quantity surveyor after her employer declined to accept her withdrawal of resignation.

In that case, the employee handed in a letter of resignation after she claimed that her manager had been "verbally abusing, physically threatening and bullying" her over a protracted period of time. A meeting was subsequently held with management to discuss the situation, however the versions of events given in evidence at the hearing differed significantly. On the one hand the employee alleged that at the meeting that the employer "appeared sympathetic towards her and said he was not accepting her resignation". The employer, on the other hand, submitted that the employee had confused sympathy for her situation with rejection of her resignation. When the employer subsequently wrote to the employee stating that the written resignation was accepted, the employee expressed "shock and dismay" at this development. Having considered the conflicting evidence from both sides in the case, the Tribunal found that the resignation letter had been withdrawn by the employee and had not been accepted by the employer. The Tribunal held that it was the subsequent letter from the employer referring to and confirming the earlier resignation that amounted to a letter of dismissal. As there were no fair grounds for this dismissal, it was held by the Tribunal to be unfair.
[UD946/2007, McManus v Brian McCarthy Contractors].

Notwithstanding the position adopted by the Tribunal in the above case, leaving employment in a fit of temper places an employee in a very difficult position in the event that he or she subsequently wishes to withdraw such resignation. It is important that any change of heart by an employee should be communicated to the employer as soon as possible after the resignation. The employer is entitled to consider any request made by an employee and may or may not decide to allow the employee to retract the resignation.

Caution may have to be exercised by the employer if the employee used words or actions that are ambiguous when resigning or did so "in the heat of the moment". An employee may make a decision that is not fully informed because he or she is not in a position to fully evaluate his or her options or the employee may act on a misinterpretation of something which is said or done. Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to withdraw once the true position becomes clear.

When considering what an employee might have meant when he/she declares "I quit", it will be necessary to consider all of the circumstances. If there is still ambiguity, the Tribunal would look at what a reasonable employer and employee would have understood the words to mean in the circumstances.

In the UK case of Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156, it was held that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee's true intentions. "Special Circumstances" may include particular pressures on the employee or the employee's personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

This authority was relied upon by the Labour Court in Charles Shinkwin and Donna Millett [ED/03/33] in an application under employment equality legislation, where it was held that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The Labour Court went on to note that: "The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case". In that case it was held that the refusal of the respondent to allow the complainant to continue in her employment amounted to a dismissal.

It therefore appears that if the resignation was in the heat of the moment, the employer should, according to best practice, allow a cooling-off period to ascertain if any other matters arise to cast doubt on whether the employee really meant to resign. A reasonable cooling-off period may only be a day or two, but this will depend on the facts of the individual case. If the employer fails to allow a cooling off period and immediately accepts the resignation, then the Tribunal might conclude that the employee had not in fact resigned, but was dismissed by the employer.

For further information please contact Susan Battye.

October 2009.