Question
A discussion that took place between one of our employees and his manager broke down when the manager raised some underperformance issues. The situation became heated and ended with the employee shouting ‘stick your job’. The employee, who has been with us for five years, came back to work the next day. Are we able to treat him as having resigned?
Answer
The general rule regarding notice is that, once notice has been validly given, it can neither be refused nor withdrawn without agreement from the other side. This is true regardless of whether the employer or employee has given notice.
However, caution should be exercised where a resignation is given ‘in the heat of the moment’. There has been case law to suggest that, where an employee resigns during (for example) a dispute, the employer should allow a period of ‘cooling off’ before confirming the resignation.
It may also be unsafe to rely on the words used by the employee if they did not constitute a clear and unambiguous resignation. In this case, the employee may be able to argue that ‘stick your job’ did not show a clear intention to resign, particularly in the absence of the comment being followed up by anything in writing.
If you do decide to terminate his employment, there is a possibility that the employee could bring a claim of unfair dismissal. Given the above, the employment tribunal could view the termination as a dismissal and not a resignation and allow his claim to go ahead.
The safest option at the moment is to meet with the employee again to ascertain whether or not he truly intended to resign. If the employee states that he does wish to go, it would be sensible ask him to confirm his resignation in writing to reduce the risk of him being able to argue that he resigned in anger.
If however he states that he had no real intention to resign, terminating his employment regardless may be risky.
Of course, either way, given his actions during the meeting you may wish to consider taking disciplinary action.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.