Can my employee retract his or her resignation?

An employee leaving an organisation is a normal part of business, but as employers you should be prepared to deal with an employee who wishes to retract their notice to terminate their contract of employment.

It is a common misconception that an employee’s resignation can be withdrawn before you have formally accepted it. However, once an employee has given you notice, they cannot usually withdraw this without your agreement.  If they do ask to withdraw their resignation, you are not legally obligated to accept this, but depending on the situation you may choose to allow them to do so. A notice will only be withdrawn where both you and your employee agree.

It is also important to consider the circumstances in which the resignation has been given. If an employee had resigned “in the heat of the moment” or in response to an action by another member of staff it may be that the resignation will be deemed invalid.

In McManus v Brian McCarthy, the Employment Appeal Tribunal (EAT) awarded compensation to an employee who had handed in a letter of resignation after claiming that her manager had been “verbally abusing, physically threatening and bullying” her over a period of time. In a subsequent meeting which occurred between the parties, the employee claimed that the employer was sympathetic to the situation and agreed to treat the resignation as withdrawn, but the employer claimed that this was not true. The employer then wrote to the employee to confirm the resignation and the termination of her employment. The EAT found that because the employee had validly withdrawn her resignation letter, the letter which was sent to the employee was an act of dismissal. As there were no fair grounds for dismissal in this case it was held to be unfair.

When considering whether an employee has resigned “in the heat of the moment”, you should consider all of the circumstances. If there is still ambiguity in the form of resignation, the Tribunal will look objectively at what would have been understood between the parties in the circumstances.

If the employee does have a change of heart after handing in their resignation, you may wish to allow the employee time to cool off where the resignation was given “in the heat of the moment”. If after that period of time the employee still wishes to leave, it would be good practice to state in writing that you gave the employee an opportunity to reconsider. 

It can also prove useful to monitor reasons for resignations, for example, by holding an exit interview. Whilst resignations do not have to be given in writing it would be good practice to state in an employee’s contract that resignations should be provided in writing.

If you have questions about whether you should allow an employee to retract their resignation you can contact the Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.