As anyone who has seen the BBC’s Great British Bake Off this week knows, sometimes people do things in the heat of the moment which they come to regret only a short time later. When you’re under pressure and things aren’t going your way, throwing in the towel
(or throwing the baked alaska into the bin) can seem the best option, but then when things have cooled down a bit, you realise that it wasn’t the right thing to do at all.
Sometimes in a work environment when something happens which places an employee under pressure or which makes them feel that they are not being treated as they should be, the employee can react by resigning from their employment and walking out. Often however,
once they have had some time to think about things (and often after they have spoken to their spouse or partner if they have one), the employee comes back to work and says that they don’t want to leave after all – is it safe in these circumstances for the
employer to treat the employee as having resigned and to not let them back to work or will doing this in fact amount to a dismissal of the employee? If not allowing the employee back does amount to a dismissal and the employee has two years or more continuous
employment with the employer, then the refusal could lead to the employee successfully being able to bring an unfair dismissal claim in the Employment Tribunal and this could then lead to an award of compensation being made.
One thing the employer needs to consider carefully when deciding how to react to the employee’s actions is whether what the employee did or said was in any way ambiguous. Was it clear that they were in fact resigning? For example, someone might leave their
workplace before the end of the working day, clearly unhappy and saying “That’s it! I’ve had enough of you and I’m off”, but does that mean that they have intended to walk out for good?
It’s certainly risky for an employer to treat such a statement as a resignation and the safer thing to do is to get the employee to clarify their intentions, either there and then or, if they haven’t contacted you already, by contacting them after a short period
of time for cooling off. If this leads to the employee saying that they were not in fact intending to resign, then it’s safest to treat that as being a statement of fact and not regarding the employment as over. Of course, that’s not to say, however, that
you can’t begin a fair disciplinary process against the employee for having left work early and without consent.
But what about where there’s no room for doubt in what the employee says or does and it’s perfectly clear that their intention when they walk out is to resign from their job?
Treating such a resignation which occurs while emotions are running high (and the employee is possibly not thinking clearly) as being an effective termination by the employee of their employment can once again be risky for an employer and if the employee comes
back later that day or at some time soon afterwards and says that they want to carry on with their job, then again the safe thing to do is to treat the employment as still ongoing.
Where the employee has clearly resigned in such a heated situation, however, and they do not come back to work in the next day or so and also do not contact their employer in that same period to say that they want to come back to work, then the employer will
be on safer ground if they then treat the employee’s employment as having ended by way of resignation. Where the employee’s words and actions made clear their intention to leave their employment for good and even after having had time to cool off and reflect,
they have still done nothing to indicate that they want to carry on working for their employer, then they are likely to struggle if they subsequently, at a later date, begin to claim that they have not in fact resigned and that by not now being allowed to
return to work, they have in fact been dismissed. However, it’s a tricky judgement as to how much time needs to pass before the employer can safely regard the employee as having resigned and their employment as having ended and taking specialist legal advice
on the point is, therefore, a worthwhile step in most cases.
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at
(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)