Can an employee withdraw a resignation?

Background

The case of Social Care Worker v Social Services Charity (ADJ -00039351) examines the circumstances under which an employer would be compelled to consider a rescinding of a resignation by an employee.

Social Care Worker (the Complainant) brought a complaint under Section 8 of the Unfair Dismissals Act 1977 against Social Services Charity (the Respondent) to the Workplace Relations Commission (WRC), alleging that she had been dismissed, despite having submitted a resignation letter.

The Complainant had lost her daughter suddenly two years ago previously and had heard of her daughters passing while at work. She was a long serving member of the organisation and very well qualified. She developed chronic chest respiratory difficulties and was suffering from a significant degree of stress and anxiety, which was certified by her doctor, when she tendered her resignation. Her doctor later provided written reports that she was not in a fit state of mind to make such a major employment decision.

Having tendered her resignation, she almost immediately wrote to her employer, noting that she was no longer progressing with her resignation, based on medical advice. 

That request was not accepted by the respondent, who defended the decision, based on a policy, whereby, once a resignation has been put forward, it could not be withdrawn. 

Legislation and Case Law

A number of cases were cited by both parties.

According to the Respondent, the common law rule regarding notice given by either party is that once notice is given it cannot unilaterally be withdrawn. A leading common law case is Riordan v War Office (1959) 1 WLR 1046 where Diplock J stated: 

“this was sufficient notice given by the plaintiff terminating his employment… once given it could not be withdrawn save by mutual consent‟

The Respondent noted the UK case of Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156, it was held that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intentions. “Special Circumstances” may include particular pressures on the employee or the employee’s personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

In Geraghty v Industrial Credit Corporation, the EAT concluded on the evidence that the respondent did not regard the claimant’s ‘resignation’ at the relevant time ‘as a real resignation’. The EAT has also given guidance on circumstances where an employee resigns but later communicates to his employer that he wishes to withdraw his resignation: Keane v Western Health Board. The claimant had resigned in Keane, apparently unaware of her employer’s grievance procedures. She attempted to invoke the procedures during the notice period. The respondent’s evidence was that it did not reconsider a letter of resignation as a matter of policy. The EAT held that the claimant, notwithstanding the grievance procedure, genuinely believed that the difficulties and stress she was experiencing presented her with no alternative other than to resign from her employment:

“The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment. The Tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure.”

The facts of this case are all indicative of a resignation that was tainted by reason of her confused state of her mind. The Adjudication Officer also note at paragraph 22.25 the following observation in Redmond on Dismissal Law:

“If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

Decision

Ultimately, the Adjudication Officer decided that the complainant had been unfairly dismissed. 

The Adjudication Officer determined that “The Employer should have met her and reconsidered their position based on the unique facts of this case. They failed to do so and stuck rigidly to a policy that has very little to do with human nature and vulnerability and how the stresses and strains that employees may experience can impede rational decision making. This is particularly so as this Charity operates in the mental health sphere. This is a very large organisation and the Complainant at the hearing stated that she now would prefer compensation on the basis that trust, and confidence has been breached, at a point she sought her job back.”

The takeaway for employers considering an application to rescind a resignation, is to decipher whether there are any complicating factors, that may have impeded the ability of the employee concerned to make a rational decision in respect of such matter. A failure to consider any extenuating circumstances, may result in an adjudicator officer determining that the decision to resign, was not made with the benefit mental or emotional cognition.