Do You Have to Accept an Employee’s Request to Rescind Their Resignation?
Generally speaking, an employee’s resignation does not need to be accepted for it to take effect. If an employee wishes to leave their employment, an employer cannot prevent that happening: you cannot force an employee to remain working for you if they do not want to (except you can ask the employee to work their contractual notice period). Having said that, as an employer you can ascertain why the employee is leaving – and if it is due to enhanced terms and conditions (e.g. more money) then there is always scope to see if you can persuade them to stay. That said, you should not feel ‘blackmailed’ into offering more money; but you do need to have regard to how a pay increase to one person impacts others within the organisation from an Equal pay / discriminatory / and general pay fairness perspective.
However, if an employee has resigned in the ‘heat of the moment’ it is good practice to allow the employee to reflect on their decision and to return after a few days to either confirm they still wish to resign or assist in resolving the ‘issue’ that triggered the ‘heat of the moment’ resignation.
On the other-side of the coin, if an employee has resigned, the employee cannot unilaterally rescind their notice: this has to be with the agreement of the employer. An employer has to act reasonably in considering any request to rescind a resignation, but an employer might not accept such a request, if they have already recruited a replacement, or taken steps to outsource the work, or re-organise the team/department to accommodate the departure of the employee.
Recent Case
There has been a recent case where an employer chose not to accept an employee’s request to rescind their resignation.
In this case a long-standing employee had been grumbling about their pay for some time (you’ve all encountered employees like this, I’m sure) and the employee tells their manager that they are resigning to pursue a more lucrative opportunities. The employee tells colleagues that they are leaving the business and approves the company’s announcement that goes out to the rest of the business. Three weeks later, the employee asks to rescind their resignation because, they say, it was made in haste during a mental health crisis.
What Would You Do?
In this case the employer refused to allow the employee to withdraw their resignation, and the employee alleged that this failure amounted to disability discrimination.
The Facts of the Case
The employee (Director of HR) commenced employment in 2009. The employee suffered with depression and anxiety and was diagnosed with ADHD. The employer was aware of these conditions.
The employee was prone to episodes of being impatient and having emotional outbursts. The employee had resigned during previous “meltdowns”: once in 2019 and again in 2021. At the time, the manager recognised that the employee was unwell, and on both occasions did not accept the resignations.
Following the diagnosis of ADHD, the employee was prescribed medication for ADHD but the employee decided to stop taking anti-depressants which had a significant impact in that the employee had suicidal thoughts and went into extreme rages. However, the employee was able to successfully mask how they were really feeling at work.
A month or so later, the employee became very upset at work and had to take a few days off. The employee told their manager that the “mania was over” and that they were just exhausted. The employee returned to work and, outwardly, appeared to be ‘normal’.
During a subsequent routine meeting with their manager, the employee said that they were resigning to pursue opportunities to earn more money. The manager believed that the employee had thought through their decision and accepted the resignation. A week later the employee told colleagues about leaving and approved the announcement about their departure which was sent to the rest of the business. The employee subsequently confirmed their resignation in writing and confirmed that they intended to work their notice period.
The employee subsequently messaged the manager asking for help. During a meeting the employee asked to rescind their resignation but when that was refused, the employee wrote to the leadership team (and the Board) in the following terms:
“Despite me informing the business at the beginning of this year of my ADHD disability, the lack of support and reasonable adjustments at work over the last 6 months, has caused me considerable stress, anxiety and deep depression, to the point of not wanting to be ‘here’ anymore.
“My illness was further compounded yesterday by the business refusing to let me rescind my impulsive decision to resign, which due to the nature of my disability, was a decision made whilst being extremely ill and seeking psychiatric support to find the right combination of medication to treat my illness – an illness I have managed and ‘masked’ over the last 13 years of loyal and dedicated service …, but has been become difficult, (but not impossible), to manage due to my late in life hormonal changes.”
The employer did not believe that the medical conditions had impacted their decision on this occasion and that the employee had resigned to earn more money elsewhere. This was against a background of the employee complaining about their pay in 2018 and 2022 (which resulted in increases to basic pay, which at the time of resignation was approximately £122k). The employee was aware that it was unlikely that their pay would be subject to further, significant increases going forward.
The employee brought a number of claims, including that they had been treated unfavourably contrary to s15 Equality Act 2010.
s.15 Equality Act 2010 Claim:
There is a two stage test to a s.15 claim.
- the claimant is required to establish that they have been treated unfavourably because of something arising in consequence of their disability.
- The tribunal has to evaluate whether the employer’s treatment of their employee is a proportionate means of achieving a legitimate aim.
In dealing with (1) the tribunal accepted medical evidence that at the time of resigning, the employee’s mental state was significantly impacted by changes in medication. This meant there was a link between the employee’s disability and the resignation.
In dealing with (2) the legitimate aim put forward by the employer was that rescinding the resignation after it had been publicly announced would be “destabilising” for the rest of the workforce. The tribunal accepted that this was a legitimate aim but held that steps taken by the employer to achieve it were not proportionate because:
- It knew the employee was attributing her “hasty” decision to resign due to her disabilities and should have taken steps to explore this.
- It had decided that the employee’s analysis wasn’t true, based on its own observation even though the employer was “not qualified to make that judgment” and had “closed its mind” to considering whether the employee’s mental health was a factor.
- It should have paused and obtained proper, informed medical advice about the impact of the disabilities on the employee’s decision making and obtained an OH report before reaching a decision.
What Lessons Can Employers Learn From This Case?
If an employee resigns using clear and unambiguous language, you are entitled to take it at face value. But…..
- If there is any ambiguity, you must clarify whether the employee intended to resign before taking any further action.
- If the resignation is in response to an event (i.e. in the ‘heat of the moment’ during an argument, in temper, or under extreme pressure) you should give an employee a short, cooling down period and then discuss the situation before taking any further action.
- Where an employee has a known mental health issue, or a neurodiverse condition (autism, ADHD), you should consider the employee’s mental state before deciding how to proceed. The above case demonstrates that you may need to obtain medical reports, where a disability may have impaired the employee’s decision making.
Consequently, when an employee resigns, it might be appropriate at the outset to investigate the context in which the decision to resign is being made.
Hopefully, the majority of the time, it will be employees leaving your employment on amicable terms.
