Withdrawal of Resignation

Employees may sometimes change their minds after resigning, leaving employers in a position where they must decide whether to accept the retraction or proceed with the termination of employment. Usually, once an employee has tendered their resignation, they do not have the right to unilaterally withdraw it, however, this is not a straightforward issue. Under Irish employment law, a resignation is viewed as a unilateral act by the employee. If it is communicated in clear, unambiguous, and unconditional terms, it effectively terminates the employment contract.

In the case of Balazi v Simro t/a Wrights of Howth (UD 995/2008), the Employment Appeals Tribunal (EAT) determined that the employer was entitled to accept the employee’s unambiguous resignation. The resignation was held to represent a clear termination of employment.

Verbal vs Written Resignations

Resignations can be communicated either verbally or in writing, but for clarity and legal certainty, it is advisable to always request written confirmation. This helps prevent disputes over whether a resignation was in fact tendered.

In the case of Brian O’Herlihy v Cadbury Ireland Limited (UD274/2008), the EAT held that it was not unreasonable for the respondent, after two and a half months, not to reconsider the claimant’s resignation, stating that “there was too long a gap between his announcement of his resignation and his ultimate attempt to rescind his own decision”. Furthermore, the EAT stated that there were no special circumstances. The EAT dismissed the claim under the Unfair Dismissals Acts 1977 to 2007.

Where a resignation is provided verbally an employer should, ideally, request some form of written confirmation from the employee. In the 2012 EAT case, Jackie Drumm v Electricity Supply Board, the Tribunal were unanimous in their view that the employee had not resigned as there was no letter to support the resignation, no ‘cooling off’ period and no exit interview had ever taken place.

Can an Employer Accept a Retraction?

An employer may choose to accept the retraction of a resignation, but they are generally not obliged to do so. The usual expectation is that once an employee resigns, they serve their notice period and depart as planned.

However, employers should exercise caution, particularly in cases where:

• The resignation was ambiguous or conditional.

• The resignation was made in the heat of the moment, for example during an argument or under stress.

• There are signs the employee was under undue pressure or not thinking clearly.

If a resignation appears questionable and the employer proceeds to treat it as final, there is a risk that an Adjudication Officer may later determine the resignation to be invalid, resulting in a potential constructive dismissal claim. In the case of Social Care Worker v Social Services Charity (ADJ-00039351), a long-serving employee resigned while experiencing significant stress and health issues. Shortly after, she sought to withdraw her resignation, supported by medical evidence indicating she was not in a fit state of mind when she resigned. The employer refused, citing a policy against accepting retracted resignations. The Workplace Relations Commission (WRC) found that the resignation was made under duress and that the employer acted unreasonably by not considering the withdrawal.

Key Takeaways:

• No automatic right to retract: Retraction of a resignation requires mutual consent.
• Get it in writing: Always request written confirmation of a resignation.
• Context matters: Resignations made impulsively or under stress may not be valid.
• Evaluate carefully: If there is any doubt, take time to assess the situation.