Omar v Epping Forest District Citizens Advice

The case of Omar v Epping Forest District Citizens Advice acts as a reminder for employers not to accept verbal resignations immediately, without giving thought to the circumstances of the verbal resignation.

Facts of the Omar v Epping Forest District Citizens Advice case

The claimant resigned in the heat of the moment following an altercation with his manager. On the two previous occasions when the claimant had resigned, he had been talked back into his job.

Later that day, it was recognised that the claimant wished to continue his role but was offered an alternative role instead. His manager however no longer wanted to work with the claimant and decided that his resignation would stand and retracted the offer of an alternative role.

The claimant brought claims for unfair dismissal and wrongful dismissal on the basis that he had not resigned. He argued that the situation fell within the ‘special circumstances exception’.

The Employment Tribunal concluded that the claimant had brought his employment to an end by his resignation and dismissed the claims. The claimant appealed to the EAT.

The EAT held that the question of whether an employee has resigned is to be determined objectively from the perspective of the reasonable bystander viewing the matter from the employer’s perspective. The EAT concluded that the Tribunal had not considered the factual question of whether the resignation was intended and the appeal was therefore successful and remitted the case to a fresh employment tribunal for a full rehearing.

Takeaways

• This case sets out helpful guidance on resignation and dismissals as the EAT conducted a full review of the key principles to consider when there are heat of the moment resignations:
• There is no such thing as the “special circumstances exception”; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context.
• A notice of resignation or dismissal, once given, cannot be unilaterally retracted. The giver of the notice cannot change their mind unless the other party agrees.
• Words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case.
• The circumstances that may be taken into account include “absolutely anything” that was “reasonably available” to the parties “that would have affected the way in which the language used would have been understood by a reasonable bystander”.
• The perspective from which the words used are to be judged is that of the reasonable bystander in the position of the recipient of the words used. Where the employee resigns, the relevant perspective is that of the employer who hears the words of resignation; where the employer dismisses, the relevant perspective is that of the employee.
• What must be apparent to the reasonable bystander in that position, objectively, is that the dismissal or resignation was “seriously meant” or “really intended” or “conscious and rational”. This means that the speaker of the words genuinely intended to resign (or dismiss) and also to be “in their right mind” when doing so. It does not mean that it needs to be a rationally thought through or sensible decision.

There is likely to be a fine line between cases where resignation was not “really intended” and cases where there had been a change of mind. The EAT acknowledged that this would be a question of fact for the tribunal to consider in each case.

In the vast majority of cases where words are used that objectively constitute words of dismissal or resignation there will be no doubt that they were “really intended” and the analysis will stop there. An employment tribunal will not err if it only considers the objective meaning of the words and does not go on to consider whether they were “really intended” unless one of the parties has expressly raised a case to that effect to the tribunal or the circumstances of the case are such that fairness requires the tribunal to raise the issue of its own motion.

Evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation/dismissal was ‘really intended’ at the time.

Finally, the same rules apply to written notices of resignation or dismissal as to oral ones, except that where a notice is given in writing that will normally indicate a degree of thought and care that will make it less likely that there are circumstances which, objectively, would lead the reasonable bystander to conclude that the notice was not “really intended”.

Markus Schober is a solicitor in our employment law team.