It is a normal principle of English employment law that clear notice of termination, once given, cannot be retracted without the consent of the other party. The few cases there are on the point relate mostly to employees resigning in a temper or when their judgement is significantly and visibly impaired through illness or drink, such that in either case the employer should reasonably have regarded the notice as not the product of a rational thought process and so not insisted on it. In those circumstances, a refusal to allow the retraction of the resignation could amount to a dismissal, usually unfair.

Similar considerations apply to resignations by employees who clearly have significant mental health issues such as the old Law School favourite case whose name I can no longer remember concerning the clinically delusional factory employee who resigned because she thought she had been told to do so by her lathe. She was found unfairly dismissed when, despite the obvious nonsense of that position, the employer leapt at her resignation (I cannot imagine why) and refused to let her withdraw it. As a consequence, those very limited circumstances aside, it will rarely be risky for an employer to decline an employee’s request to retract their notice.

In Bradley -v- Royal Mint last month, however, the Employment Appeal Tribunal took a new look at that principle in the light of the disability provisions of the Equality Act, and in particular under section 15. This says that an employer will discriminate if it takes unfavourable action against an employee because of something arising out of that employee’s disability, unless that action can be justified.

Miss Bradley held the senior HR position in a small executive team at the Mint. It was acknowledged that she suffered from a variety of mental health complaints and that these amounted in aggregate to a disability at law. Her conditions led her sometimes to behave inappropriately in the office – rudely, aggressively, with a tendency to develop fixations, shout at people and storm out of meetings. In September 2019 and again two years later, Bradley had sought to resign. On both occasions it was recognised that she was in something of a state and on both occasions her manager had commendably declined to accept her resignation.

In June 2022, Bradley sought to resign again. This time she was calm and had a considered and not unreasonable rationale for her decision, i.e. that she had heard good things about working as an interim and was aware that her financial aspirations could only be met outside the Mint. Bradley confirmed her resignation in writing and cooperated in the announcement of it to staff, union and other internal and external stakeholders. Unfortunately, her first attempt to obtain an interim role fell on its face and she then sought to withdraw her resignation from the Mint, which it refused.

On the principles above, end of issue, you would assume. However, Bradley then asked again to be allowed back, this time asserting that despite her outwardly calm demeanour and coherent reasoning for it at the time, the decision to resign had actually been caused by her mental health conditions. On grounds which don’t matter here, the medical evidence produced for the Tribunal appeared to confirm that. Bradley agreed that she had latterly deliberately misled the Mint as to her state of health, but this was accepted by the Tribunal as not an uncommon position for some mental health sufferers, desperate not to let their conditions impact their employment. The EAT found as a result that when accepting Bradley’s resignation and initially refusing to let her take it back, the Mint had no disability considerations in mind and could not be faulted.

So how on earth could refusing to allow Bradley back nonetheless be unlawful discrimination? Because, said the EAT, the Mint had not drawn breath at the point where Bradley had attributed her resignation to her disability, paused, or looked into whether there was any decent argument for or against that assertion. Without informing itself in that way, the Mint could not say that refusing the retraction was a proportionate means of achieving the legitimate aim of not having all the destabilising effect and public egg on face of unwinding Bradley’s just-announced departure.

Now the matter has gone back to the Employment Tribunal to consider remedy. High on that agenda will be the question of whether, if it had carried out that further enquiry, the Mint would still have declined to allow the resignation to be withdrawn. The EAT did not say so in terms, but obviously the consequence of any finding to that effect would be that Bradley would receive little or no compensation.

This is a superficially disconcerting outcome for employers, but it is important to keep in mind what this ruling does not mean:-

1. that anyone who resigns can later retract it on the grounds that they were suffering with impaired mental health at the time – to engage section 15 they would still be required to show that their mental health impairment amounted to a disability at law and that that disability had a realistic impact on their resignation;
2. that such an employee should be allowed to retract their resignation irrespective of the adverse effect which that may have on the business, for example through contradicting issued announcements, destabilisation of the workforce, passage of time from resignation to retraction, who was told what about the resignation by the employee themselves, impact on commercial credibility, etc. The proportionality judgement to be carried out when assessing justification under section 15 very much allows factors of that sort into the balance. The key is that employer is seen to consider them in the light of a full understanding of the employee’s medical condition; or
3. that you should assume that the resignation of an employee you know to suffer from debilitating mental health conditions is not genuine. Repeated requests for confirmation that the employee is sure he is leaving (“no, but really?”) will begin to look both distrusting and demeaning of the employee and altogether keener to see him gone than is necessarily entirely sensible.