A question faced by many employers is how to deal with an employee who resigns and subsequently attempts to retract that resignation. It is well-established that, in most circumstances, where notice of termination has been given by either party, it cannot be withdrawn without the other party’s consent. This is a sensible rule which brings clarity and certainty to the employment relationship.
However, the Employment Tribunals have tended to make allowances for “heat of the moment” behaviour, where the employer dismisses or the employee resigns and immediately has a change of heart. Where it is clear that the action of the employer or employee has been impetuous or rash, Tribunals generally consider that there should be an opportunity for the words to be withdrawn.
Employers will also be familiar with the situation where an employee resigns and, whether out of a desire not to lose the employee, or an attempt to forestall potential Tribunal proceedings, they try to get the employee to change their mind.
In Chelmsford College Corporation v Teal UKEAT/0277/11 an employee employed on a fixed-term, zero-hours contract resigned with immediate effect when her claim for overtime pay was refused. Her employer invited her to a grievance hearing at which it confirmed that her overtime would be paid and the employee retracted her resignation. During the time when her grievance was being resolved, the employee carried out no work for the employer, which then wrote to her to inform her that she would not be paid for the intervening period. The employee raised a grievance about not being paid and, after that was rejected, she resigned again and brought Tribunal proceedings. The question before the Tribunal was whether the employee’s employment had ended with the first or second resignation, as it affected whether her claim had been brought in time. The Employment Tribunal and, subsequently, the Employment Appeal Tribunal, found that the Claimant had remained in employment until her second resignation. Both Tribunals considered that the first resignation had been clear and unambiguous and was not in the heat of the moment and, therefore, the employer had been under no obligation to invite her to withdraw it. However, after the employee, at her employer’s suggestion, agreed to withdraw the resignation, her employment continued as though the resignation had never happened.
Also, think carefully before inviting an employee to withdraw their resignation: consider all the ramifications, in particular, what you will do if they say yes.
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