Notice, once given, cannot generally be withdrawn unless the other party consents. There have been numerous cases dealing with the issue of a disputed resignation over the years but, the general rule remains. Individuals should therefore be absolutely sure of the effect they want to achieve before giving notice of their choice to resign as they are unlikely to be able to retract it.
The notice clause
All employment contracts should contain a notice clause setting out what both the employer and employee have to do to terminate employment. Specifically, the clause will set out how much notice must be given by one party to the other (weeks or months). Usually, the clause will say that notice has to be given in writing but, this is not always the case – occasionally it may be permissible to give it orally. It is however, always advisable to give notice in writing (and make sure it is dated) to avoid any dispute later on.
Does an employer have to accept a resignation?
Employers may talk about “accepting” someone’s choice to resign but, this is misleading. As long as the employee is doing what the notice clause in the contract requires i.e. giving it in the form and duration specified, an employer cannot stop someone resigning. While they may try their best to urge someone to reconsider – so that both parties then agree the notice will not be operative – an employer cannot force someone to carry on working against their will if they have indicated they want to leave.
Are there any exceptions to withdrawing a resignation?
While the general rule is that notice cannot be unilaterally withdrawn, the party receiving the notice needs to satisfy themselves that the giver of the notice really did intend to give notice of resignation (or dismissal). In cases involving oral notice, did the employee really mean what they apparently said? Usually there will be no doubt whatsoever but, in appropriate cases, the recipient of the notice should allow the giver a “cooling off” period before acting on the notice to resign.
Where words may have been said in the heat of the moment, this limited exception to the rule enables the giver of the notice to convince the recipient that their mind was not in tune with their words, allowing them to retract.
Can refusing to accept a withdrawn notice count as unfair dismissal?
Although the general rule is that the employee and employer must both agree in order for a notice to be successfully withdrawn, this rule is subject to exception in the right circumstances, as a recent case demonstrates.
In 2018, the Employment Appeal Tribunal (EAT) upheld a claim that an employee was unfairly dismissed after she attempted to retract her resignation, but this was denied by her employer.
In East Kent Hospitals University NHS Foundation Trust v Levy, Mrs Levy had worked in the hospital’s records department for around 10 years. Following difficulties with another colleague she successfully applied for a new role in the radiology department in order to resign from her current role. She submitted a letter to her manager which stated: “Please accept one month’s notice from the above date”.
In response, her manager replied, “Thank you for your letter … in which you tendered your notice of resignation. It is with sincere regret and disappointment that I accept your notice of resignation. I can confirm that your last day of work within Health Records will be Friday 8 [July] 2016.”
On 16 June, the job offer in the radiology department was withdrawn. This was “unofficially” due to her sick leave record. Mrs Levy tried to retract her notice but, following advice from the HR department, her manager refused to accept that request and wrote to her again confirming the date of her last day of employment, essentially forcing her to resign. Mrs Levy brought a claim of unfair dismissal and an employment tribunal (ET) ruled in her favour.
The ET considered that the words used in Mrs Levy’s letter were not unambiguous and could have been either a notice of intended transfer or a notice of termination. The ET concluded that the letter would lead a reasonable observer to agree that the claimant was not terminating her employment, but rather notifying her manager of her intention to accept the offer. It therefore upheld Mrs Levy’s claim that she had been unfairly dismissed when her employer insisted on holding her to her notice, so that her employment was treated as terminating.
This case turned very much on its own facts and a similar case might be decided differently by another tribunal. However, it serves to demonstrate that unless there is absolute clarity in an employee’s resignation i.e. that they are clearly signalling their intention for their employment to terminate, an employer risks a claim of unfair dismissal, especially where the employee subsequently seeks to retract their notice.
An employer should always make sure it understands why the employee has decided to resign, the notice they are giving (and whether this is subject to any conditions) and agree exactly when the employment will end.