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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70384
Experience:  Qualified Solicitor
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A member of staff (bar staff) called in to say he was going

Customer Question

A member of staff (bar staff) called in to say he was going to be late (an hour after his shift should’ve started) it was a busy Xmas shift and we had a few words about this as his lateness was becoming a regular event. He then swore at me and told me he’d quit and slammed the phone down. I called him back but he didn’t answer. He still hadn’t got in touch or answered my calls so I had no choice but to cover his shifts. He was due some wages and a little holiday pay, I asked the manager of the bar to inform him they were ready to collect (or we could transfer). He collected them and neither of us heard from him since .Last week I received a call from ACAS and they tell me he’s taking me to court for unfair dismissal and not paying his holiday entitlement (I have payslips to proofs the latter isn’t true) however it’s his word against his that he quit - Does he have a case?
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Expert:  Ben Jones replied 7 months ago.

How long did he work there for? Please note I am mobile today so may not be able to reply immediately, thanks

Customer: replied 7 months ago.
Hi, sure. 6 years on and off
Expert:  Ben Jones replied 7 months ago.

Many thanks for your patience. Whilst a resignation which is clear and unambiguous cannot be retracted without the employer’s consent, there are circumstances when an employee may resign in the heat of the moment, such as during an argument. It could be an official resignation, or an act that implies resignation, such as clearing their desk, leaving keys/passes or saying they will never return. In such situations they might not really have meant to resign but did so on impulse. Therefore, their resignation would not meet the criteria of being clear and unambiguous and may not be immediately binding.

In such circumstances the employer should not automatically assume that the employee had actually resigned and should allow a short cooling off period to see what their actual intentions were. A couple of cases have considered such situations in the past - Kwik-Fit Ltd v Lineham and Ali v Birmingham City Council. It was decided that an appropriate period for the employee to change their mind was "likely to be a day or two".

Therefore, in circumstances where an apparent resignation has occurred 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 be used by the employer to contact the employee in order to clarify their position, such as asking them to submit their resignation in writing if they actually meant it. Failure to do so and take their resignation at face value could be treated as a dismissal instead, which could be challenged as being unfair in the employment tribunal.

However, if you had made attempts to contact him and he did not respond and no news were heard for some time, then you can assume that he has resigned and challenge any such claim.

Does this answer your query?

Expert:  Ben Jones replied 7 months ago.

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Expert:  Ben Jones replied 7 months ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you