Resignations are regularly encountered in the world of employment, and indeed employment tribunals. Some people resign to start a new job, others because they hate their existing job (or boss). Some resign to fall on their sword and avoid an inevitable sacking. And some resign when they feel they have no alternative. Some people even resign when they don’t mean to.
A resignation is the termination of employment by the employee. It can be contrasted with a dismissal which is the termination of employment by the employer.
There is no magic formula required for a resignation. Generally, there will be a notice period required by the employment contract. Whilst ideally it is best for a resignation to be committed to writing, this is not a legal requirement. Plenty of resignations are tendered verbally. Of course, employers prefer to have resignations in writing for the sake of a solid paper trail.
A resignation does not have to be accepted before it is valid. It is not an invitation to dinner. It is one party telling the other “I no longer want to work for you”. Occasionally we encounter employer clients who, when faced with a resignation, think they can reject it or refuse to accept it. That is misplaced. Of course, good practice is to acknowledge a resignation.
Are there any circumstances when an employer cannot “accept” a resignation? Generally speaking, where the employer receives a clear, unambiguous statement from the employee communicating resignation, the employer is safe to “accept” it. However, where the words spoken are ambiguous, or where the surrounding circumstances would cast doubt as to whether the employee actually meant to resign, the employer should think twice.
These circumstances are often referred to as ‘heat of the moment’ or ‘special circumstances’ resignations. For example, an employee may have an argument with their boss which results in the employee storming off and uttering words to the effect of “shove your job up your….”.
These cases sometimes involve profane language. That would be a ‘heat of the moment’ resignation. The words were spoken by the employee mid-argument. The words were ambiguous (there is no mention of resignation).
In such situations, the correct approach is for the employer to allow the employee a cooling-off period and an opportunity to reconsider whether the employee actually intended to resign. A failure to do so, and proceeding instead to issue the P45, is a risky approach for an employer. There is a risk that an employment tribunal would find such an employee not to have resigned, but rather to have been dismissed. The knock-on effect is that such a dismissal would potentially be an unfair dismissal, entitling the employee to compensation (assuming they had been employed for at least two years).
If you have resigned in a bust-up situation and want to change your mind, act quickly and alert your employer to your moment of madness. An apology is useful too if you have overreacted. Employers should likewise think twice before reaching for the P45.
Jack Boyle is Director, Employment Law, Blackadders LLP