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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49842
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We have an employee who, having received a Final Written Warning

Customer Question

We have an employee who, having received a Final Written Warning on Monday, handed her notice in yesterday verbally (orally, not written). She said that: "She did not wish to work for the Company a minute longer than necessary". Her boss accepted the verbal resignation and it was agreed that her last day of employment would be Tuesday 19 February. A third party can bear witness to this exchange between employer and employee.

She has today said that she has changed her mind. She accused her boss and other colleagues of fabricating lies about her and has threatened to engage solicitors against us.

In what circumstances can an oral rather than a written resignation be accepted? Is the proof of a third party witness sufficient to override the requirement for a written notice in the light of such comments, inter alia, that she wanted to leave the employment as a matter of some urgency?
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know if her contract required her to submit her resignation in writing?
Customer: replied 5 years ago.


It provides "written". My question is whether a witnessed oral statement provides the same authentication or not? Is it not simply an evidence issue?


Expert:  Ben Jones replied 5 years ago.
An oral statement, whether witnessed or not, can be just as legally binding as a written one. This would also apply to a resignation - if an employee has verbally resigned, as long as they communicated that clearly to the employer then it would be legally binding.

Sometimes an employee may resign after an argument with their manager or another colleague. In such situations they might not really have meant to resign but did so in the heat of the moment. In fact, the employee does not even need to say they are resigning and can imply that they have done so, e.g. by simply stating they are not returning, by taking their belongings with them, leaving their company access card or keys, and so on.

In such cases, the employer should not automatically assume that the employee has resigned and should allow a short cooling off period, attempting to find out whether the employee had actually intended to resign.

The cases of Kwik-Fit Ltd v Lineham and Ali v Birmingham City Council dealt with such situations. They decided that an appropriate period for the employee to change his mind was "likely to be a day or two". That is on the assumption that the employee had not already been given the opportunity to reflect on their apparent resignation and retract it.

Therefore, in circumstances where an apparent resignation has occurred following an argument or simply in the heat of the moment, the employer would be expected to give the employee a couple of days before treating their actions as a formal resignation. That time should also be used by the employer to contact the employee in order to clarify their position. Failure to do so and take their resignation at face value could be treated as a dismissal instead, which could easily be challenged as being unfair in the employment tribunal.

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