R Omar v Epping Forest District Citizens Advice

A purported resignation or dismissal must be construed objectively in its full contractual context. The question is whether a reasonable bystander in the recipient’s position would understand both that words of immediate termination or notice had been used and that they were really intended at the time.

There is no separate “special circumstances” exception. A notice which was really intended cannot be withdrawn unilaterally, but later events may objectively illuminate whether it was really intended when given. They cannot merely evidence a later change of mind. The speaker’s uncommunicated intention is irrelevant. The recipient’s actual understanding is relevant evidence but is not decisive.

The claimant, an Advice Session Supervisor, used words of resignation during an altercation with his line manager on 19 February 2020. A later meeting considered whether he and the manager could continue working together. On 21 February he was told that the manager could not work with him, and he agreed to put his resignation in writing. He instead emailed two days later seeking to retract what he described as a heat-of-the-moment resignation.

The Employment Tribunal dismissed claims for unfair dismissal, constructive unfair dismissal and wrongful dismissal. It held that the claimant had resigned and that no “special circumstances” displaced the ordinary rule. The claimant appealed, contending that the Tribunal had applied the wrong legal approach and made insufficient findings about the events before and after the words used.

1. Appeal allowed. The Tribunal erred by treating the case as one concerning a distinct “special circumstances” exception. The correct question was whether, objectively and in all the circumstances known or available to the parties, a reasonable employer would have understood that the claimant’s words both amounted to a resignation and were really intended at the time.

2. A notice of resignation or dismissal which has been effectively given cannot be unilaterally retracted. The later conduct of the parties is nevertheless admissible where it objectively casts light on whether the notice was really intended when uttered. It has no effect where it merely shows that the giver later changed their mind.

3. The speaker’s uncommunicated subjective intention is irrelevant. The recipient’s subjective understanding is relevant evidence, but cannot displace the objective contractual analysis. Anger, pressure, immaturity or mental impairment may be relevant circumstances, but do not by themselves establish that a notice was ineffective.

4. The Tribunal made no findings about the words used, the claimant’s appearance and conduct during the altercation, the prior occasions on which he had apparently resigned, or the material content and context of the meetings on 19 and 21 February. Those findings were necessary to decide whether the claimant had not really intended to resign, or had resigned and later changed his mind. Its focus on an alleged alternative role was a side issue.

5. The case was remitted to a freshly constituted Employment Tribunal for a full rehearing, applying these principles and making the necessary findings of fact.

• Employment Appeal Tribunal: appeal allowed; the matter was remitted for a full rehearing before a fresh Employment Tribunal.
• Employment Tribunal, East London: on 27 January 2021, with written reasons sent on 15 March 2021, dismissed the claimant’s claims for unfair dismissal, constructive unfair dismissal and wrongful dismissal.