A recent judgment of the Jersey Employment and Discrimination Tribunal seeks to find clarity in an all-too-common workplace situation: when emotion prevails, tempers fray and an employee resigns on the spot.
In the judgment, we read how an employee resigned and then took his case to Tribunal citing unfair dismissal because, he maintained, his employer should have understood that his resignation was made “in the heat of the moment” after a disagreement over money.
What should an employer do when an employee resigns or, as is more often the case, clearly tells you what you can do with your job? In this situation, case law has established that a “cooling off” period is necessary. The Tribunal referred to Kwik-Fit (GB) Limited v Lineham [1992], which establishes that if an employee resigns in an emotional state and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intention. Special circumstances may include pressures on the employee or the employee’s personality. According to the Kwik-Fit judgment, if the resignation occurs in the heat of the moment and there are special circumstances, the employer should allow a cooling off period to establish whether the employee really intended to resign. This includes when an employer welcomes the employee’s resignation.
In the local case, the Tribunal were without doubt that special circumstances existed – the employee was known to have a fiery personality and the evidence suggested that his own financial difficulties had influenced his behaviour when arguing with his boss. “The evidence showed that [the employer] realised that [the employee] was angry and that his resignation may have been borne out of anger rather than a genuine wish to leave his employment,” the judgment reads.
But the Tribunal still rejected the claim of unfair dismissal. Why?
After reviewing text messages between the parties, the Tribunal concluded that the employer had made it clear that they did not want their employee to resign and gave him the weekend to calm down and reconsider his decision – a “cooling off” period. After the weekend, text messages showed the employee to be in a calmer state of mind; however, his text messages remained ambiguous and were taken by the employer to be confirmation that the employee was indeed leaving and was not working his notice because he had been signed off sick with a sore throat. At no point did the employee clearly communicate to his employer that he wanted to withdraw his resignation. Furthermore, the employee’s decision to remove his tools from the employer’s premises served to reinforce the employer’s belief that the employee intended to resign.
The Tribunal concluded: “While the ‘heat of the moment’ exception requires an employer to seek clarification as to whether the resignation is genuinely intended, that exception does not place on the employer an on-going obligation to persuade the employee to change his mind, nor does it require an employer to speculate as to the employee’s intentions.
“In circumstances where an employer has properly provided a ‘cooling off’ period, it is incumbent on the employee to clearly and unambiguously set out his position to the employer. This may be in writing, verbally or through his conduct (for example, by reporting for work as usual). In any event, it would be patently unfair to expect an employer to guess the employee’s intentions. The onus is therefore on the employee to make it clear that he has withdrawn his resignation. Failure to do so will result in the resignation remaining effective.”
This judgment reinforces the need for a cooling off period and clear communication once the heat of the moment has passed. Ambiguity invariably leads to misunderstanding and potentially costly battles. There can be a strong temptation to accept the resignation, but this can so often by the wrong decision.
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