R Omar v Epping Forest District Citizens Advice

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the matter for a full rehearing. The tribunal below had erred in law by failing to make the factual findings necessary to apply the correct legal test and by treating the so‑called "special circumstances exception" as a departure from the ordinary contractual approach to notices of resignation/dismissal. The EAT reviewed the authorities and set out the governing principles, including section 95 of the Employment Rights Act 1996 on the definition of dismissal, and emphasised that:

• notices of resignation or dismissal must be construed objectively in all the circumstances;
• a notice once given cannot be unilaterally retracted;
• the relevant question is whether, to a reasonable bystander in the recipient's position, the words used constituted words of termination and appeared to be "really intended" at the time;
evidence of subsequent events is admissible to illuminate what was really intended, but a change of mind afterwards is not effective unless accepted by the other party.

The EAT concluded the first instance tribunal had not applied these principles or made the factual findings necessary to resolve whether the claimant had resigned or been dismissed, so the case was remitted for a fresh hearing.

Background and procedural posture:

• The claimant (Mr Omar) was employed from 22 February 2016 until the dispute in February–March 2020. He brought claims for unfair dismissal, alternatively constructive unfair dismissal, and wrongful dismissal following an altercation with his line manager in which he used words of resignation.
• The Employment Tribunal (Employment Judge Peter Wilkinson) dismissed all claims after a one‑day hearing on 27 January 2021 (reasons sent 2 February 2021, written reasons 15 March 2021). The claimant appealed to the Employment Appeal Tribunal; initial permission was refused on paper and later granted after a rule 3(10) hearing on 8 December 2021.

Nature of relief sought:

• The appellant sought a finding of dismissal within s95 Employment Rights Act 1996 and remedies for unfair and/or wrongful dismissal. He argued his words of resignation were made "in the heat of the moment" and fell within the line of authority sometimes described as the "special circumstances" cases, so that he had not validly resigned.

Issues framed by the court:

• Whether the claimant had validly resigned on 19 February 2020 or had been dismissed by the respondent on 21 February 2020 (s95 ERA 1996).
• What legal test applies where apparent words of resignation or dismissal are uttered in temper or under pressure and how to treat the so‑called "special circumstances" authorities.
• Whether the tribunal below made the factual findings necessary to apply the correct legal test.

Court's reasoning and conclusions:

• The EAT conducted a detailed review of the authorities and concluded that the law should be expressed in objective contractual terms. There is no free‑standing "special circumstances exception"; rather the same objective rules apply in all cases. The core question is whether, to a reasonable bystander in the recipient's position, the words used both amounted to termination and appeared to be "really intended" at the time they were spoken.
• The EAT held that uncommunicated subjective intention of the speaker is not decisive, the recipient's subjective understanding is relevant evidence but not determinative, and subsequent events are admissible to shed light on what was really intended (subject to the distinction between evidence illuminating intention at the time and an impermissible later change of mind).
• The tribunal below erred in law by asking whether special circumstances justified an exception rather than applying the objective test and by failing to make essential findings of fact about the morning of 19 February, the afternoon meeting of 19 February and the 21 February meeting. Those omissions prevented proper application of the legal principles.
• Because the case was finely balanced and the first instance hearing was under‑listed and substantially flawed, the appropriate disposal was to remit for a full rehearing before a fresh tribunal, properly directed in law and making the necessary factual findings.

Subsidiary observations:

• The EAT reviewed a long line of cases (including Sothern, Kwik‑Fit, Willoughby, Denham and others) and clarified their proper application, expressly rejecting some earlier formulations (notably aspects of Martin and parts of Kwik‑Fit) and endorsing Willoughby as coherent with the objective approach.

Appeal allowed and remitted for a full rehearing. The EAT held that the Employment Tribunal erred in law by failing to apply the correct objective contractual test to alleged words of resignation/dismissal (mischaracterising the issue as a 'special circumstances' exception) and by failing to make necessary findings of fact about the events of 19 and 21 February 2020; accordingly a fresh tribunal must rehear the case, directed by the principles set out in the judgment.

The claimant's case was heard at the East London Employment Tribunal (Employment Judge Peter Wilkinson) at a one‑day hearing on 27 January 2021 (oral judgment given that day; outcome and reasons provided 2 February 2021 with written reasons 15 March 2021). The claimant appealed to the Employment Appeal Tribunal by notice dated 24 January 2022. Permission to appeal was initially refused on the papers by HHJ Shanks, but after a Rule 3(10) hearing on 8 December 2021 HHJ Auerbach granted permission. This judgment was given in the EAT and reported as [2023] EAT 132.