My Employee Withdrew Their Resignation – What Can I Do?

Summary

• When an employee resigns and subsequently withdraws their resignation, the employer is under no legal obligation to accept the retraction, even if the original resignation has not yet been formally accepted.
• Employers should carefully consider the circumstances surrounding the resignation before deciding whether to accept or reject the retraction, as a tribunal may deem certain resignations – such as those made in the heat of the moment – to be invalid.
• Where a resignation is linked to a grievance or an allegation of constructive unfair dismissal, employers should investigate and attempt to resolve the underlying issue before proceeding with acceptance of the resignation.
• This article is a guide to managing retracted resignations for employers operating in England and Wales, produced by LegalVision, a commercial law firm.
• LegalVision specialises in advising clients on employment law and workplace disputes.

Tips for Businesses

Include a written resignation requirement in employment contracts to avoid ambiguity. If an employee resigns in the heat of the moment, encourage them to reconsider before acting on it. Always investigate any underlying grievances before accepting a resignation, as failing to do so may expose you to a constructive unfair dismissal claim.

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On this page

• What is Resignation?
• How Should My Employees Hand in Their Resignation?
• Do I Have to Accept My Employee’s Retraction of Their Resignation?
• The “Really Intended” Test for Heat of the Moment Resignations
• Choosing to Accept Your Employees’ Resignation Despite Their Retraction
• Key Takeaways
• Frequently Asked Questions

When an employee resigns and then changes their mind, you are under no legal obligation to accept the retraction. Once notice is properly given, it can only be withdrawn with your agreement. The exception is a resignation given in the heat of the moment. Following the Employment Appeal Tribunal’s decision in Omar v Epping Forest District Citizens Advice, the test is whether a reasonable bystander would conclude the employee really intended to resign. If the words seem irrational or impulsive, the resignation may not stand. You should give a visibly upset employee a chance to reconsider. Where the resignation links to a grievance, investigate before accepting it, as ignoring this can lead to a constructive unfair dismissal claim. This article will explain resignations, how your employee may go about it, and your legal position as an employer if your employee withdraws their resignation. You must be aware of what to do in such circumstances to help avoid employment tribunals.

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What is Resignation?

If your employee resigns from their role, they end their employment contract with you. Resigning can also be termed:

• quitting the job; or
• handing in the notice.

Your employee may resign at any point during their employment with you.

How Should My Employees Hand in Their Resignation?

If your employee decides to resign, they should typically give you notice of this. Their contract of employment with you should state how long that notice period is. If their contract does not specify their notice period, ifthey have worked for you for one month or more, they must legally give you a minimum of one week’s notice. This requirement does not increase where your employee has worked for you for longer than one month.

If you have a resignation process for your business in any procedural or policy document, your employee should follow this. You should state a process and include a clause in your employee’s employment contract requiring notice of resignation to be in writing. This will save any confusion over resignation. 

Where you do not have a clause in the contract or a procedure in place, your employee will likely resign in writing anyway. However, there is nothing that requires them to do this. If your employee’s employment contract states that notice must be handed to you in writing, they should follow this when handing in their resignation.

If your employee resigns in the heat of the moment, you, as an employer, are responsible for advising them to think about their request. You should advise them that they should let you know after doing so if they still wish to resign.

Do I Have to Accept My Employee’s Retraction of Their Resignation?

If your employee resigned and then withdrew their resignation, you can choose whether to accept the resignation or the retraction. You have no legal requirement to accept a retraction – even if you have not formally accepted their resignation notice. Instead, an employee must get your express permission to withdraw their resignation notice. 

The “Really Intended” Test for Heat of the Moment Resignations

Courts have clarified how employers should treat an impulsive resignation. The key case is Omar v Epping Forest District Citizens Advice, decided by the Employment Appeal Tribunal.

The tribunal confirmed there is no separate “special circumstances” exception. Instead, the question is whether the resignation was really intended at the time it was given. You must judge the words objectively, as a reasonable bystander would, taking account of all the circumstances.

If an employee shouts that they quit during a heated argument, then asks to retract it shortly after, the words may not count as a genuine resignation. Acting on them too quickly risks an unfair dismissal claim.

In practice, you should not seize on a resignation that looks impulsive. Write to the employee, give them a clear opportunity to confirm or withdraw it, and record that you did so. If they still wish to leave after a reasonable period, you can then accept the resignation with more confidence.

Choosing to Accept Your Employees’ Resignation Despite Their Retraction

If you decide not to accept your employee’s retraction of their resignation, your employee must still work their notice period. There are some situations you should take note of when deciding to accept your employees’ resignations after they have retracted them.

1. Resignation in the Heat of the Moment

While there is no legal requirement for you to accept a retraction of resignation, if the resignation was given in the heat of the moment and you choose not to accept the employee’s later retraction, a tribunal could view your response as unreasonable. It could also deem the resignation invalid.

2. Resignation in Response to Another Employee

If your employee handed in their resignation notice due to the action of another employee and then retracted it, you should consider whether your acceptance of their resignation may appear invalid to a tribunal.

3. Resignation Leads to a Claim for Constructive Unfair Dismissal

Constructive unfair dismissal is when an employee feels forced to resign due to their employer’s serious employment contract breach. A breach might be:

• bullying or discrimination by an employer;
• an employer refusing to examine a grievance issue; or
• an employer consistently, without good reason, not paying the agreed-upon amount.

When an employee hands in their resignation and claims they are doing so because you, as the employer, have made a fundamental breach of the employment contract, they may claim constructive unfair dismissal.

An employee may only have a claim for constructive unfair dismissal if they have worked for you for two years and are legally classed as an employee. 

Therefore, if you have not already done so, you should investigate their accusation and try to resolve it before deciding to continue to accept their resignation.

Key Takeaways

When your employees decide to hand in their resignation, they must follow some rules. For example, they must give the correct notice period. However, what if your employee withdrew their resignation later? Here, you are under no legal obligation to accept their retracted notice of resignation. Instead, you can continue to accept their original notice of resignation. However, you should consider the circumstances surrounding an employee’s resignation before deciding not to accept their retracted resignation. For example, they may have resigned in the heat of the moment or due to an allegation that you, as the employer, have fundamentally breached the employment contract. Considering the circumstances could help you avoid a potential employment tribunal.

Furthermore, if the resignation was a reaction to another employee’s actions or if there are underlying grievance issues, it is crucial to address these before making a final decision. This approach not only ensures fairness but also mitigates the risk of claims such as constructive unfair dismissal. Always investigate thoroughly and seek to resolve any grievances to maintain a positive workplace environment.

If you need help with understanding employee resignation in England and Wales, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.

Frequently Asked Questions

How much notice does an employee have to give when resigning?

The notice period should be set out in the employment contract. If the contract is silent and the employee has worked for you for one month or more, they must give at least one week’s statutory notice. This minimum does not increase with longer service.

How long must an employee have worked to claim constructive dismissal?

An employee generally needs at least two years of continuous service to claim constructive unfair dismissal, and must be legally classed as an employee. They must also show you seriously breached the contract, that they resigned in response, and that they did not delay too long before resigning.

Does an employee have to contact Acas before bringing a claim?

Yes. An employee must contact Acas to start early conciliation before lodging a constructive dismissal claim at an employment tribunal. They also generally need to bring the claim within three months of their final day of employment, so prompt resolution of disputes helps protect your business.

What is the difference between constructive and wrongful dismissal?

Constructive dismissal is where an employee resigns because you seriously breached their contract. Wrongful dismissal is where you dismiss an employee in breach of the contract, for example without proper notice. They are different claims with different requirements, though one situation can sometimes give rise to both.