Heat of the moment – withdrawing a dismissal or resignation

In Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156 Wood J said:

“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant (see Barclay). These we refer to as special circumstances. Where special circumstances exist it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is needed to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk.”

This authority has given us “heat of the moment” resignations and dismissals. Under the strict contract law position, an employee who bellows “that’s it, I quit” at his boss and stomps out of the factory, has resigned. Perhaps his boss yells back “good!” The employee could not then, according to contract law, cool off and change his mind. Not in employment law. The special circumstances mentioned above mean that in some cases resignation can be withdrawn – our angry employee might have bellowed “that’s it, I quit”, but during his drive home, knuckles white as a grips the steering wheel in rage, he may suddenly remember his mortgage, wife, children and re-think things. So he telephones his boss, explains he lost his temper, and that he is on his way back to work. He might well be successful in showing that his employment was revived by his change of heart.

This is a sensible rule, but has never come with hard and fast time limits attached. In Kwik-Fit Wood J described a reasonable period as “relatively short, a day or two”. A recent EAT case, Willoughby v C F Capital Plc [2010] UKEAT 0503_09_1307 has helpfully confirmed:

  1. the doctrine applies equally to a heat of the moment dismissal as it does to a resignation [although it would seem clear that each would require a different assessment as to what was reasonable];
  2. that a 14 day delay (even with Christmas in the middle) was far too long for special circumstances to exist.

James Medhurst has helpfully tied together an analysis of this case with the ruling of Roberts v West Coast Trains Ltd [2004] EWCA Civ 900, which gives the employer a right to unilaterally reinstate following an appeal, or even perhaps without one. This does, as he says, potentially alter the balance between employer and employee, as the former could always “cure” his heat of the moment dismissal by reinstating whereas the employee is stuck with his resignation.

It should always be remembered by employers that an offer of reinstatement, even if refused, can be tactically beneficial in reducing compensation to an employee who, it can be argued at the tribunal, has failed to mitigate his loss by taking up the offer.

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