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Hot topic - Deciding on “heat of the moment” actions

In an ideal world, things would evolve in an orderly fashion. Resignations would be in writing after a period of considered thought, and make reference to contractual provisions about notice. In the real world however, that is not always the case. Situations arise where temperatures and voices are raised, and rash things said. How do we then determine what happened and whether reliance can be placed on what was said – or whether it is even clear what was said?

In the recent case of Omar v Epping Forest District Citizens Advice the Claimant made comments during a heated exchange with his manager which the manager took as a resignation. The manager’s evidence was that the comments included “That’s it, from today a month’s notice” and: “I’m done with this place.” The Claimant denied making those comments and said instead that he had only complained that he was treated unfairly. Also, importantly, he did not seek to retract his resignation.

While the Employment Tribunal concluded that the Claimant had resigned, the Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s reasoning for that decision, and set out useful guidance on what has to be considered in such situations.

In particular, the EAT confirmed that a prime consideration is whether the words used were “really intended” when they were said, and whether the resignation was “seriously meant and rational.”

In legal cases, reference is sometimes made to the “reasonable bystander”, i.e. what would an imaginary person have thought was happening if they were looking on when the incident occurred. In these kinds of situations, it is a question of what the reasonable bystander would think if they were in the employer’s shoes, i.e. being the recipient of the “resignation”. In order for the resignation to be effective, the recipient must understand that the employee is actually resigning. However, this is obviously subjective so will not necessarily be the end of the matter. The words of the “resignation” should be looked at objectively in each case. With the above in mind, it is always for the Employment Tribunal to decide matters on a question of fact.

Of course, ‘heat of the moment’ is not just about resignations, as it works both ways - there are plenty of instances where employers have dismissed in the heat of the moment too. Essentially, a similar thought process should apply.

In the end, it is always best to avoid such situations arising in the first place if you can. When such matters are litigated it is always difficult to know how they will resolve. It is a classic case where the credibility of witnesses is at stake. There are no documents to rely upon when analysing the event in question. There may be a flurry of emails afterwards, but they will usually shed only a very subjective light on matters. Getting objective advice as soon as possible after such incidents is imperative in order to make sense of such events and how to handle them.

If you are dealing with a situation involving the ‘heat of the moment’, contact our Employment Team who will be happy to help.