In the case Mr R Omar v Epping Forest District Citizen Advice: [2023] EAT 132 the claimant resigned from his employment with the respondent ‘in the heat of the moment’ during an altercation with his line manager. In a subsequent conversation, it had apparently been recognised by his employer that he wished to continue in employment, but his line manager decided she no longer wanted to work with him and he was asked to confirm his resignation in writing, which he said he would do, but did not and instead sought formally to retract his resignation. The claimant’s case was that in law he had not resigned as the situation fell within the so-called “special circumstances exception” recognised in Sothern v Frank Charlesly [1981] IRLR 278. He argued that he had been unfairly and wrongfully dismissed. The respondent argued that he had resigned. The Tribunal found in favour of the respondent.
The claimant appealed this decision and it was found that the Tribunal had erred in law by failing to make adequate findings of fact and failing to direct itself properly in accordance with the applicable legal principles, which the EAT has decided after a full review of the earlier case law and in summary as follows:-
A) 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.
B) A notice of resignation or dismissal once given cannot unilaterally be retracted. The giver of the notice cannot change their mind unless the other party agrees.
C) 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 in accordance with normal rules of contractual interpretation. The subjective uncommunicated intention of the speaking party are not relevant; the subjective understanding of the recipient is relevant but not determinative.
D) What must be apparent to the reasonable bystander in the position of the recipient of the words is that:
i. the speaker used words that constitute words of immediate dismissal or resignation (if the dismissal or resignation is ‘summary’) or immediate notice of dismissal or resignation (if the dismissal or resignation is ‘on notice’) – it is not sufficient if the party merely expresses an intention to dismiss or resign in future; and,
ii. the dismissal or resignation was ‘seriously meant’, or ‘really intended’ or ‘conscious and rational’. The alternative formulations are equally valid. What they are all getting at is whether the speaker of the words appeared genuinely to intend to resign/dismiss and also to be ‘in their right mind’ when doing so.
E) 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. A 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.
F) The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been ‘really intended’ at the time they are said.
G) However, 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.
H) The difference between a case where resignation/dismissal was not ‘really intended’ at the time and one where there has been an impermissible change of mind is likely to be a fine one. It is a question of fact for the Tribunal in each case which side of the line the case falls.
I) The same rules apply to written words of resignation/dismissal as to spoken words.
Case: Mr_R_Omar_v_Epping_Forest_District_Citizen_Advice__2023__EAT_132.pdf (publishing.service.gov.uk)
James Williams
