When is a resignation not a resignation?

By Alec Colson

Partner – Head of Employment

22 August 2024

Article Insights

In the recent Employment Tribunal case of Bradley v The Royal Mint Ltd, the claimant (who suffered from mental health issues) had resigned which initially appeared for reasons relating to her career aspirations. She had resigned on 2 previous occasions due to mental issues which she had subsequently withdrawn and her previous withdrawals had been accepted by her employer.

On a third occasion, the claimant requested her resignation to be withdrawn again, but this time was declined by the employer, as it believed it would be destabilising to the rest of the employees (due to the resignation being made public). The claimant told her employer that her mental health had influenced her decision to resign.

The Employment Tribunal stated that once the employer became aware of the possibility that mental health was a factor in the claimant’s decision making, it should have reassessed its position. Although an Employment Tribunal judgment is not binding on other Employment Tribunals, it does raise interesting issues in relation to mental health and whether an employee really intended to resign.

This article will go into detail of Bradley v The Royal Mint Ltd  case below, but first it is useful to explore the development of case law in this area.

Development of Case Law

The 1946 case of  Riordan v War Office  established the principle that an employee/employer who has properly given notice of the termination their employment  has no right unilaterally to withdraw it. Therefore, it is not a question of  the employer refusing or accepting an employee’s resignation it is a matter for the employee.

In Sothern v Franks Charlesly & Co [1981] – The Court of Appeal held that there may be exceptions to the general principle in relation to resignations rules in the case of an immature employees or a decision taken in the heat of the moment.

The Employment Appeal Tribunal (EAT) held in Martin v Yeoman Aggregates [1983] that it is good practice to provide an employee the opportunity to withdraw their resignation notice, if it was originally given “in the heat of the moment”.  For example, where an employee in a fit rage informs their employer that they know what they can do with their job, it is advisable for the employer to allow the employee a cooling off period.

In Kwik-Fit v Lineham [1991], the EAT set out an approach that should be followed, if a “special circumstance” exists. A reasonable period of time should be allowed to see whether the notice was really intended and the employer should investigate the matter further.

Recent Case Law

Omar v Epping Forest District Citizens Advice (EFDCA) [2023]

In this case the EAT undertook a comprehensive analysis of the previous case law and produced some guiding principles  as to whether a resignation by an employee was in the “heat of the moment”.

One of the important principles that derived from this case is that when notice of resignation was given it must be judged from the objective perspective of the reasonable bystander that the dismissal/resignation was “conscious or rational”. The employer/employee must have genuinely intended to dismiss/resign and be in the “right frame of mind”. The question for a Tribunal is – did the employee really intend to resign? This leads us to the Bradley below.

Bradley v The Royal Mint Ltd [2024]

The  claimant was disabled with mental impairments of depression and anxiety and ADHD. The employer accepted knowledge of depression and anxiety from 2013 and knowledge of the ADHD diagnosis from January 2022.

In September 2019, the  claimant had an emotional breakdown and offered to resign. However, the employer’s CEO refused to accept the resignation, recognising the  claimant was not well. In 2021, the claimant  offered to resign again, following further incidents in the workplace, with the offer being rejected. The employer recognised the impact of the claimant’s mental health on her decision to resign.

9 months later in June 2022, the  claimant & the CEO had a meeting, where the  claimant again tendered her resignation. This time, however, the  claimant provided varying reasons for wishing to resign. This ranged from her salary and wishing to explore other roles in London which offered hybrid working. The  claimant mentioned friends of hers had secured similar jobs in London. The CEO recognised, that unlike previous occasions, the claimant was not visibly upset, sobbing, displaying emotions or behaviour which would cause concern as to their mental health, or the decision was an impulsive one. The CEO accepted the claimant’s resignation. The CEO commented that they did not  consider the  claimant to be having a decline in her mental health. The CEO had witnessed outbursts and declines in behaviour from the  claimant before, and this  did not appear one of the situations. A fortnight later, the  claimant confirmed her resignation in writing, via email.

In July 2022, the  claimant requested a conversation with the CEO, as she had decided to withdraw her resignation. The CEO considered how to respond to the request and concluded it would be disruptive to the business and there was a real risk she may resign again. Therefore, the employer did not agree  to allow the  claimant to withdraw her resignation.  The  claimant subsequently brought a number of claims including that she has been treated unfavourably as result of her disability under section 15 of the Equality Act 2010.

The Tribunal found that although the claimant may have been feeling calmer and more stable, the expert evidence and the existing mental health issues she suffered from should have also been taken into account.  The Tribunal agreed with the  claimant’s submission that the employer should have taken steps to properly inform themselves as to how her mental health had affected her decision to resign. Had they done so, they would have known the  claimant’s mental health had impacted her decision to resign. The employer’s position should have been reassessed on/around 27^th/28^th July.

The Tribunal found that  the employer should have paused and take proper informed medical advice concerning the employee’s disabilities and the impact these had on her decision to resign. The Tribunal concluded that the employer did not implement a proportionate means in achieving their aims of maintaining stability of their senior workforce, by accepting the resignation and thereby in breach of  s.15 of the Equality Act.

Lessons to be learnt

Employers need to be aware that should new information come to light that may have affected the employee’s original decision to resign, they will need to re-assess whether they have a duty to at least pause the notice period until a more informed decision can be made particularly where the employee has a disability which may affect their ability to make rational decisions. If you have any concerns relating to the topics discussed above, our Employment team are able to help.

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