UpdateOmar v Epping Forest District Citizens Advice 2023 – A Genuine Resignation or a Heat of the Moment Comment? Where to Draw the Line?

January 22, 2024

In the midst of workplace conflicts, employees may find themselves making offhand statements to their colleagues with no intention or meaning behind them. In Mr Omar’s case, a seemingly offhanded comment ended up in the Employment Appeal Tribunal (EAT). The EAT has recently revisited a case concerning an employee, Mr Omar, who verbally expressed his desire to leave the company in ‘the heat of the moment’ after having an altercation with his line manager. The EAT helpfully set guidelines for future similar cases concerning dismissals and resignations made in the heat of the moment.


The Heat of the Moment

On 3 February 2020, Mr Omar had received a letter from his line manager containing feedback about his poor timekeeping in the workplace. In disagreement with the letter, Mr Omar, in the spur of the moment, expressed his desire to resign, specifically stating “that’s it, from today, a month’s notice”. Despite this and two previous similar occasions where Mr Omar had resigned and then reconsidered, his line manager did not accept this as a formal resignation at this stage.

Thereafter, Mr Omar had a meeting with the CEO who had told him to consider an alternative role within the company and encouraged him to think about it. During a further follow up meeting, the CEO had in fact reconsidered and decided that Mr Omar’s resignation would be treated as standing and requested his notice in writing, due to his line manager declining to work with him thereon. In refusal, Mr Omar attempted to retract his verbal resignation explaining that it was given in the ‘heat of the moment’.

Despite his efforts, his employer refused and took his resignation seriously, giving him a month’s notice. Mr Omar took this matter to the Employment Tribunal claiming that he was unfairly and wrongfully dismissed. The Employment Tribunal dismissed his claim which subsequently led to his successful appeal at the EAT.


The Employment Appeal Tribunal Decision

The EAT concluded that the tribunal had made numerous material errors of law in their decision and failed to take account of all the circumstances. As a result, the EAT ruled in favour of Mr Omar and helpfully outlined several key points to act as a precedent for future ‘heat of the moment’ resignations or dismissals.

Reasonable Bystander Test: The EAT held that Mr Omar’s intention to resign was irrelevant in this instance, the employer’s understanding is only relevant and not determinative. The ‘reasonable bystander’ test, namely where a reasonable and objective person viewing the ‘event’ would consider the employee to have/have not resigned, was used in this case, ruling out any subjective intentions. The EAT outlined a useful two-limb guide in what must be apparent to an objective and reasonable bystander:

  • the employee expressed words of immediate resignation or notice. The employee expressing that they intend to resign in the future would not be sufficient; and
  • the resignation was ‘seriously meant’, ‘really intended’, or ‘conscious and rational’. The word ‘rational’ is not meant as a reasonable decision but more so meaning that they were ‘not in their right mind’. The EAT Judge also commented on the failure of the tribunal in making findings on Mr Omar’s appearance at the time that he expressed his desire to resign, which may be a further factor to consider when determining whether an employee is ‘rational’ at the time of resignation.

Special Circumstances Exception: The EAT explained that there “is no such thing as the special circumstances exception”, despite being recognised in the case of Sothern v Frank Charlesly in 1981 and explained as an exception by the previous tribunal. The EAT appreciated and accounted for the fact that Mr Omar was under stress-induced circumstances, but this was not considered as an exception, rather a factor of consideration.

Unilateral Retraction: Once a valid notice of resignation has been issued, it cannot be unilaterally withdrawn. The individual providing the notice is unable to change their mind unless mutual agreement is reached with the other party involved. In Mr Omar’s case, he had, on several occasions, stated that he intended to resign, but then retracted his statements. The EAT rightly pointed out that although this was the case, he was not in his right mind.

Standard Principles: In accordance with the standard rules of contractual interpretation and the context of the case, words expressing (or considered to be expressing) resignation should be conducted objectively.



This case acts as a reminder to employers to ‘read the room’ when an employee resigns in the midst of a heated argument. Context is key in circumstances like Mr Omar’s case. Employers now need to ask themselves whether a reasonable bystander would consider the resignation to be ‘seriously meant’, ‘really intended’ or ‘conscious and rational’. Although a resignation doesn’t need to be rational nor a sensible decision, an employer should consider whether their employee is in the right state of mind when making a decision as big as resigning from a role.

Would you consider the words “that’s it, from today, a month’s notice”, in this context, as a ‘seriously meant’ resignation? Did the EAT make the right decision in overriding the tribunals decision?


W Legal are able to provide any assistance and or training in this area and would love to answer any questions either an employer or employee may have.

If you would like to have a confidential discussion with our employment department, please get in touch with Charlotte Turnbull at charlotte.turnbull@wlegal.co.uk

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