Is Employer obliged to ask Employee to reconsider Resignation?

Part 1

When an employee says “I quit”, in the heat of the moment, or unexpectedly furnishes a letter of resignation, it often stirs up a whirlwind of emotions for any business owner – especially if it’s out of the blue.

Let’s face it though, there might also be a silver lining if their departure resolves ongoing issues! However, tempting it may be to quickly accept their resignation; the employer should proceed with caution.

Sometimes, the resignation reflects the reality that the mutual relationship of trust and confidence between employer and employee that should exist between has deteriorated beyond the point of return.  

However, it does still mean that there will be occasions where a resignation is not really intended and deciding whether that is the case, may not always be straightforward.

Where an employer suspects that a resignation was not genuinely meant, the wisest course of action is often to give the employee some breathing room and encourage them to reflect on their decision. Because being overzealous in accepting a resignation could still risk an unfair dismissal claim!  

The risk of unfair dismissal is not the only reason to tread carefully where “in haste” resignations are concerned.  

Overall, the law reflects and clearly takes into account that a resignation, while often routine, is a significant act. When done clearly, it deserves respect; and, when there are doubts about whether it is genuinely intended, it is worthwhile to double-check the resignation was truly meant, and proceed as follows:

  • Give the employee a “cooling off period” if their resignation was given in the heat of the moment. We would suggest a minimum of 48 hours notice is given asking them to reconsider and confirm if their resignation stands. 
  • Advise the employee that you will wait for a period of (say) seven days before acting on the resignation letter.
  • Meet the employee (if the employee wants to meet) and following on from that meeting proceed as follows (if the employee is adamant that she wants to resign).
  1.  Confirm you are accepting their resignation
  2. Confirm their contractual or statutory notice period; whichever is the longer, and their last day of work, so that you can both start planning for the future.
  3. Calculates their holiday entitlement until their last day of work and calculate whether any holiday pay is owing to them. [If they have been overpaid for holidays you could ask for this to be refunded – I definitely do not advise this!]
  4. Decide if they should work all, some or none, of their notice period.
  5. Express your regret and wish them well for the future.

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Part 2

Labour Court Upholds Decision to Reinstate Employee Who Sought to Retract Resignation Tendered in “Special Circumstances”

The Labour Court (the “Court”) has recently issued its decision in Saint John of God Community Services CLG and Ms Olapeju Oyegoke [UDD2415]. This was an appeal by the employer (hereinafter the “Respondent”) of the Workplace Relations Commission (“WRC”) decision that the Respondent’s refusal to allow Ms Oyegoke (the “Complainant”) to retract her resignation amounted to an unfair dismissal, due to the special circumstances under which it was tendered. In his decision in that case (A Social Care Worker v A Social Services Charity ADJ-00039351), the Adjudicator, Brian Dalton, ordered reinstatement of the Complainant to her role. 

Facts: The Complainant had been a good employee with the Respondent since 24th August 2004 until she handed in her resignation on 27th January 2022. The Complainant had resisted an internal transfer, having suffered the sudden death of her teenage daughter. The Complainant provided a medical certificate in support of her position and requested a referral to Occupational Health. However, the Respondent did not send her to Occupational Health and instead sought to rely on a risk assessment carried out by a Social Care Leader, a copy of which was not provided to the Complainant. The Respondent sought to progress the internal move. The Complainant was under the care of medical health professionals and was on certified sick leave at the time of her resignation. Her resignation was accepted by the Respondent on the same day it was tendered. A number of days later, and on receipt of medical advice, she sought to retract her resignation. The Respondent would not allow this. It cited the fact that it was not its policy to allow resignations to be withdrawn. The Complainant made a further request to retract her resignation, setting out her medical issues in detail. This was again refused, but the Complainant was offered a role on the Respondent’s relief panel.

Decision: The Court considered the decisions in KWIK-Fit (GB) Ltd v Lineham [1992] IRLR 156 and Keane v Western Health Board (UD940/1988) in considering whether or not “special circumstances” existed, requiring the Respondent to permit the Complainant to retract her resignation. The Court was satisfied that special circumstances are not limited to so-called “heat of the moment” resignations.

The Court noted that the Keane decision took into account the Complainant’s state of mind at the time of the resignation. The Court considered the sequence of events, noting that the Complainant had an “unblemished career”. The Court found that at the very least the Respondent should have enquired as to why the proposed transfer had such a drastic impact on the Complainant.

The Court upheld the Adjudicator’s decision that the Complainant was unfairly dismissed and agreed that reinstatement was the most appropriate redress in the circumstances. In coming to this decision, the Court considered the Complainant’s length of service and noted that reinstatement would not create any hardship for the Respondent, particularly given that they were willing to have her return to their relief panel. It is interesting that although the Complainant indicated in the WRC that she was no longer interested in returning to work for the Respondent, the redress sought in the Labour Court was reinstatement.

Takeaway for Employers: 

  1. This decision highlights the need for employers to be mindful of the circumstances surrounding an employee’s resignation, especially if they are long serving. 
  2. The Employee should be asked to reconsider resignation in pretty much all circumstances.
  3. Where an employee seeks to retract his/her resignation, it is advisable for an employer to consider the request and whether or not “special circumstances” exist. 
  4. A blanket refusal to permit an employee to retract his/her resignation may result in a successful unfair dismissal claim and an order for reinstatement, re-engagement, or compensation.  
  5. Each case must be considered on its own merits and rigid adherence to blanket policies should be avoided.