When does a resignation become an unfair dismissal?
In the recent case of Ali v Birmingham City Council the employee resigned but then tried to claim unfair dismissal. His claim and his appeal to the EAT have now both failed. However, this case has given the EAT the opportunity to review the case law in this area.
An employee who resigns 'in the heat of the moment' should be given an opportunity to reflect before the employer accepts his resignation. Otherwise it may be an unfair dismissal.
In this case, the employee was under no pressure from the employer to resign. He handed his resignation letter to his manager who, after taking HR advice, offered him a short cooling-off period of 30 minutes to reconsider his decision. She left him alone to do so but, after only 10 minutes, he confirmed that he wished to resign. He did not change his mind until 4 days later. That was too late and his resignation was not an unfair dismissal.
Point to note –
- Employers are reminded that if a decision to resign is taken ‘in the heat of the moment’ or the employee is ‘jostled into a decision by the employer’, he or she may in fact be being unfairly dismissed. This case shows what a prudent employer, in such circumstances, needs to do to avoid the risk of such a claim.