When can an employee’s resignation be rescinded?Posted in : Seamus Says - Employment Law Discussion on 25 September 2017
Q. When is an employee resignation binding and therefore cannot be rescinded? When must you accept the resignation?
That is a smart question. Again, I think that you have to tread with caution when it comes to resignations.
Scott: I’ve seen that. Go on.
Seamus: I’ve had a number of cases and I’ve actually run cases in tribunal where resignations have been given in the heat of the moment and they have subsequently been retracted. We’ve had to run cases to find out what the tribunal’s view is in relation to it. Really, from experience, the outcome and the workings of that have been that it is possible for an employee to withdraw a resignation, whether you want to call it renegement or whatever it is, but you do need to think about things that happen the heat of the moment.
A lot of resignations can happen where there has maybe been a dispute or if someone’s got their wires crossed or there’s some sort of confusion that has arisen and some of them will storm out of work.
Scott: “You accused me of XYZ, that’s what you did.”
Seamus: Maybe then, what I tend to see happen is they’ll do that and rather than correct themselves in terms of resignation, they’ll put in the sick line and then the employer is really left and wondering what has happened here. Again, it’s about keeping the lines of communication open.
One of the other things is that in prior cases, there was direction from the tribunal that the employers should really consider the retraction of the engagement unless they have taken steps at that point to recruit or to hire or whatever they said, “Sorry, you have resigned from that position and we’ve reorganised and we don’t any longer need that position.” You have to have justification for that. The tribunal really will look down into where is the justification if you haven’t properly considered the retraction of the resignation.
It’s different if someone’s saying, “I want to retract my resignation,” and the employer is saying, “Well, good, retract your resignation, but there will be a disciplinary procedure that can end up potentially gross misconduct.” There are various ways the employer needs to deal with that, but tread carefully, particularly where these resignations are made in the heat of the moment. Where a resignation is and someone has come in there saying, “I’m moving on. I’ve got another job.”
When they get another job is really a good indicator that they want to go. Sometimes that other job can be rescinded and maybe their references haven’t checked out and they’re back saying, “Look, I want to keep my job.” It’s really for the company to decide at that point, what is the provision for them. If they’ve already put out advertisements for recruitment, they may need to say to the employee, “You’re going to have to reapply for the post.”
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