Legal advice: Heat of the moment
By Keith Miller of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
There is a strange concept in employment law known as constructive dismissal. This can occur when an employee resigns in response to something the employer has done that is so bad that the employer can be said to have broken the employee's contract, for example, where the employer fails to pay wages or bullies an employee.
A manager was told by his employer that he was no good at his job, to which he replied: "That's it, I'm off."
The manager went back to his desk and was followed by his boss who, in the heat of the moment, said that he thought the manager was leaving and, shortly after, said the manager was to go there and then, and that he did not want the manager back.
As often happens in such circumstances, the matter ended up before an employment tribunal. The case was interesting in that it considered (1) if the words of the boss were bad enough for the manager to resign, and (2) did the manager's words mean that he was resigning, or was he simply saying that he was off for the day?
The tribunal decided that the manager's words meant that he had resigned by giving notice but that the boss' later words were an instant dismissal during that notice period.
The employer appealed and, although it lost, the appeal tribunal made two important points:
- When assessing the meaning of words spoken in the heat of the moment, you must ask what intention a reasonable bystander would understand them to convey.
- An angry comment made in the heat of the moment would not amount to a constructive dismissal as it could easily be taken back when tempers had cooled.
So, if you are an employer and say something you do not mean, the sooner you put the record straight the better or it could cost you dear. Equally, if you are employed and say something which is taken as a resignation, but you did not intend to resign, say so. If not, you could find yourself without a job and without an employment claim.
