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Can an employee retract their notice? Key things employers need to know about notice periods

03 June 2024

The length and mechanics of an employee’s notice period with an employer will form a crucial part of the majority of employment contracts. However, have you ever considered the mechanics of how notice periods worked in your company, or wondered about the overarching law that covers this area? Read on to ensure you’re up to date and are managing notice properly in your company.

Giving Notice

Unlike the majority of employment law, there are no statutory requirements on the mechanics of giving notice. Instead, it is the precise contractual provisions detailing the giving of notice and how termination takes effect that will govern the end of a particular employment relationship.

At a basic legal level, however, notice is not effective until it is actually given and effectively communicated, thereby giving an ascertainable date on which the contract is to cease. Notice should therefore be clear and unambiguous from both sides.

In the absence of contractual provisions, notice can be given orally or in writing. This is important for employers to take note of, since it means that an employee shouting ‘I quit’ in a heat of the moment dispute could technically be said to have given their notice. Contractual requirements, however, do usually specify that notice must be given in writing. This guards against such sudden resignations and dismissals. Ideally, notice should also be requested to be given in person or via email to avoid any disputes about letter delivery.

While there is a common misconception that notice is not valid until it has been ‘accepted’ by the other party, the actual legal position is that notice, once validly given, is effective, and cannot be ‘refused’ by the recipient nor ‘withdrawn’ by the person giving it without the other side’s agreement.

Withdrawal of Notice

Once a valid notice has been given, it cannot be withdrawn by only one party, whether the employer or the employee. The notice period can, during the operational period of that notice, only be shortened or extended by mutual consent.

Terminations in the Heat of the Moment

As mentioned, a party who has properly given notice of termination has no right unilaterally to withdraw it. However, the EAT has confirmed that good industrial relations practice generally requires an employer or an employee to be given the opportunity to withdraw words of dismissal or resignation spoken in the heat of the moment after they have calmed down.

Furthermore, the Court of Appeal has also identified some ‘special circumstances’ that might mean an otherwise clear and unambiguous resignation cannot be relied on by an employer as having that effect. These include:

  1. An immature employee.
  2. A decision taken in the heat of the moment, such that there may be a real question as to whether the words uttered were really intended to mean what they appeared to say.
  3. An employee being jostled into a decision by the employer.

These exceptions do seem to be limited. While generally unambiguous words of resignation will lead to the conclusion that an employee has resigned, in some cases there may be something in the context of the exchange between the employer and the employee, or in the circumstances of the employee him or herself, to entitle courts to conclude that notwithstanding appearances there was no real resignation despite what it might appear to be at first sight. Exceptions are likely to be justified only in highly exceptional circumstances.

If you believe there is something that may affect the validity of any resignation in your company, it may be worth reaching out to see whether the resignation was really intended and can be properly assumed. Otherwise settled case law confirms an objective test is to be applied to determine whether it would have appeared to a reasonable employer in all the circumstances that a claimant ‘really intended’ to resign, i.e. that it was ‘seriously meant’ or ‘conscious and rational’, meaning the speaker genuinely intended to resign and that they were in ‘their right mind’ when doing so.

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