Should you consider someone walking out of a job as having resigned?
In this guide for employers, we look at how to deal with an employee who has quit their job without giving written confirmation or notice, or who claims to have resigned in the ‘heat of the moment’. We’ll also look at what the law says about terminating employment and the implications on employment rights such as notice periods and final pay entitlement.
Does walking out of a job count as resigning?
Walking out of a job and resigning from employment are not necessarily the same thing; much will depend on the specific circumstances and what the employer could reasonably assume from the situation.
What is a reasonable assumption on the part of the employer to reach in the circumstances, and whether it is reasonable for the employer to treat the act of walking out of work as a resignation, will depend upon the facts.
For example, the individual may have walked out following an argument with their manager or work colleague, or have otherwise been involved in a stressful situation. They may have walked out to simply take a breath and let off steam, albeit with every intention of returning.
Where the individual walked out of work using words that were unclear as to their intentions, such as “I’m going home” or “I’ve had enough”, even if where this hinted at leaving for good, it would typically be unreasonable for the employer to treat this as a resignation. Reacting in the heat of the moment should not usually be regarded as a true reflection of the individual’s intentions, especially if they return shortly afterward after calming down. Instead, it may be appropriate to deal with their conduct under the organisation’s disciplinary procedure, for example, for insubordination or aggressive behaviour. Again, this will depend on the specific circumstances.
If, on the other hand, the individual walked out of work using statements such as “I’m never coming back”, “Consider this my notice” or “I quit”, the employer could reasonably conclude from this that the individual intended to resign, especially if they fail to return the same day or shortly after. If the individual walked out of work in response to their employer’s conduct, they may be able to bring a claim for constructive dismissal, as we discuss in detail.
Similarly, if the individual handed in their work keys, security pass, uniform or other work equipment, this again is likely to result in the same reasonable conclusion, or otherwise compound any conclusion already drawn from what was said.
Where the individual’s conduct is treated as an unequivocal resignation, the employer is not legally obligated to provide a cooling off period or any opportunity for them to change their mind.
If, however, the employer is found to have acted unreasonably in treating the individual’s conduct of walking out of work as a resignation, they may be able to bring a claim for unfair dismissal. In other words, where the employer is insisting that the individual resigned when this was not intention, they may be able to argue that the employer has dismissed them without good reason or following a fair or lawful process. To be eligible to claim for unfair dismissal, in most cases the individual will need to have worked for their employer for a continuous period of at least 2 years, and be classed as an employee rather than a worker.
Employee obligations when resigning
By walking out on their job, where the individual’s conduct and words are unequivocal and accepted as a resignation, the individual will have effectively terminated their contract of employment without notice.
Typically, an employee is required to provide their employer with a specified period of notice. This will usually be set out under the terms of the contract of employment, which may also provide that notice must be in writing. In this case, the notice period will not start to run until the individual has given their employer written notice.
In the absence of a written contract, or where the contract is silent as to what notice must be given, the individual is still required by law to give their employer at least one week’s notice if they have been in their job for more than a month. This is a statutory minimum requirement.
If there is no contract, or the contract does not mention how to give notice, the individual can give verbal or written notice.
Employees do not have to give notice if they resign after working somewhere for less than a month and they have no employment contract. Otherwise, employees must by law give at least a week’s notice.
Where there is an employment contract, this should state the required minimum notice period and specify whether the individual has to give notice in writing. If the contract does not specify written notice is required, the individual can resign verbally.
Employees resigning with immediate effect in protest at their employer’s conduct can give a verbal resignation, although a written notification is advisable particularly if the individual will be claiming constructive dismissal.
If the employment contract requires written confirmation of resignation and a minimum notice period to be given, the employee would be in breach of contract by not giving the required notice that they are resigning and/or by failing to give written notice. The employer could take the individual to court for breach of contract, although financial loss caused by the premature exit would need to be shown.
What to do if an employee resigns with immediate effect?
If an employee walks out and you consider this to be a resignation, you can accept that the individual has now left the organisation. In some cases, such as where there have been issues or disruptions relating to the individual, a resignation may be in the organisation’s best interests.
Alternatively, you could refuse to accept the resignation and stipulate that the individual presents for work in the usual way to work their notice. Failure by the individual to come into work would then likely be a breach of contract, which would be grounds for you to legal action against them to recover any losses incurred.
Employee rights after walking out of a job
In the event that someone has resigned by walking out of work, and thereby not provided their employer with any notice, written or otherwise, this will almost certainly have an impact on any entitlement to pay in lieu of notice. They may also forfeit other contractual bonuses to which they would otherwise be entitled.
By either working the notice period, or agreeing to work a shorter notice period, the individual will not only avoid any potential breach of contract claim being brought against them, they should receive their normal pay for this period, together with any bonuses or other benefits they are entitled to, such as pension contributions.
Only where it was unreasonable for the employer to treat the act of walking out of work as a resignation will the individual have any legal basis upon which to seek reinstatement, or compensation, through the employment tribunal, ie; in the context of a claim for unfair dismissal.
Negotiating an exit without notice or reduced notice
In some circumstances, it may be appropriate for the employer and employee to negotiate and agree to shorten or waive the notice period and terminate the contract. This could allow the individual to leave either immediately or within a shorter time frame than they would otherwise be entitled to without legal repercussions. It may also be appropriate to consider options such as garden leave or using holiday entitlement to take the individual to the end of their notice period without coming into work and without breaching their contract.
Any such agreement and its related terms – for example dealing with final pay entitlements – should be made in writing to provide certainty for both parties.
What if the employee says they didn’t resign?
In circumstances where the employer formed the belief that the individual intended to resign by walking out of work, the individual would need to offer their employer some form of explanation as soon possible, for example, explaining that they didn’t intend to leave or that they made a rash decision and have changed their mind.
The employer can then decide whether or not to accept the resignation. If the individual believes the employer has acted unreasonably in treating their actions as a resignation, this may form the basis of a claim for unfair dismissal.
Employers should keep a written record of any conversations with the individual relating to the resignation. In the event that legal action follows, this can be referred to in support of your decision-making.
Heat of the moment resignations
The Employment Appeal Tribunal considered the issue of ‘heat of the moment’ resignations in the case of Omar v Epping Forest District Citizens Advice. The claimant, Mr. Omar, resigned verbally during a heated exchange with his line manager. Mr Omar subsequently sought to retract the resignation, but his employer disagreed and proceeded on the basis of the verbal resignation, bringing the employment to an end.
Mr Omar brought a claim for unfair dismissal.
The central issue in the case was whether Mr Omar’s resignation was a genuine expression of intent to terminate his employment or whether it was said in the heat of the moment”and did not reflect his true intentions.
At first instance, the tribunal found in favour of the employer.
On appeal, the EAT, in a unanimous decision, found that Mr. Omar’s resignation was not a genuine expression of intent and remitted the case to a fresh tribunal for reconsideration.
The EAT’s decision emphasized the importance of considering the surrounding circumstances when assessing whether a resignation is valid. In this case, the EAT noted that Mr Omar had a history of positive performance reviews, had expressed a desire to continue working for the organisation, and had not taken any steps to finalise his resignation, such as clearing his desk or handing in his keys.
The EAT also stated that each case will turn on its own facts.
The EAT also sets out important guidance for cases involving resignations made in the “heat of the moment.” It highlights the need for employers to carefully consider the context of an employee’s resignation before accepting it, and to be cautious about relying on verbal resignations made during emotional or stressful situations. The recipient of the resignation should, in the eyes of the reasonable bystander, consider that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.
Walking out of work & constructive dismissal claims
In the event that someone has walked out of work in protest as a direct consequence of their employer’s conduct, and that conduct is so serious that it amounts to a fundamental breach of contract, they may have a claim for constructive dismissal. In such cases, an employee is entitled to resign without providing notice.
The absence of any written resignation, or notice period, does not preclude them from making a constructive dismissal claim.
To be able to bring a claim for constructive dismissal, there are certain eligibility criteria that must be met, namely:
- The individual is classed as an employee, rather than a worker.
- They have worked continuously for their employer for no less than 2 years, although in some limited cases no minimum length of service is required.
- The employer was in serious breach of the contract of employment so as to justify termination of that contract by resignation.
- They resigned in response to that breach, and not for some other reason.
It is not sufficient to show that an employer has behaved unreasonably. There must be a fundamental breach of either an express term of the contract or breach of the implied term of mutual trust and confidence. This can relate to either an isolated incident or, alternatively, a course of conduct, the cumulative effect of which is to constitute a fundamental breach.
Common examples of conduct on the part of employers that are likely to be regarded as a breach of contract sufficiently serious to justify walking out of work might include where:
- The employer, or work colleagues, have been bullying or harassing the individual.
- The employer is discriminating against the individual, for example, by reason of age, disability, gender, race or religion.
- The employer has significantly reduced the individual’s salary without their agreement or is threatening to do so.
- The employer is refusing to pay the individual at all.
- The employer, without warning or good reason, has demoted the individual.
- The employer has made unreasonable changes to the way that the individual works, for example, changing the working location or hours without the contractual right to do so.
- The employer is forcing the individual to work in breach of health and safety laws.
Importantly, as part of any tribunal claim for constructive dismissal, the employee must show they have mitigated their losses resulting from the dismissal. This means, for example, proving they have tried to find a new job.
DavidsonMorris’ experienced employment law advisers help employers with all aspects of contentious exits and workplace disputes, including resignations and claims for unfair and constructive dismissal.
In some circumstances, particularly cases involving complex issues or senior-level employees, it may be appropriate to try and negotiate a settlement agreement to bring the matter to a swift conclusion, on terms mutually beneficial to both parties.
If you have a question about resignations or dealing with contentious exits, contact us.
Employee walking out of work FAQs
Can you legally walk out of a job?
Walking out of a job to resign without giving the required contractual notice could constitute breach of contract, for which your employer could take you to court.
What am I entitled to if I walk out of my job?
Regardless of whether you may have breached the terms of your contract by resigning without notice, your employer still has to pay you what you are owed in your final pay packet, which could include wages for work done and any outstanding holiday entitlement. If you owe the employer money, such as holiday entitlement or training fees that have been pre-agreed, this may be deducted from your final pay, but only if authorised.
Can I resign with immediate effect due to stress?
You do not have to give notice if you resign after working somewhere for less than a month and you have no contract. Otherwise, if your employment contract requires written confirmation of your resignation and a minimum notice period to be given, you would be in breach of contract by not giving the required notice that you are resigning.
Do you legally have to work your notice period UK?
If your employment contract specifies a notice period, you are obliged by law to follow this. However, depending on the circumstances, you may be able to negotiate and agree with your employer to waive the notice period and terminate the contract with immediate effect.
Last updated: 29 November 2023