Part of the cost of doing business is the unfortunate reality that employees will come and go. This reality is more true today than in most other times in history, as career mobility is limited and many employees realize that their only way to advance is to jump ship and move from company to company. The pendulum may be swinging in the other direction, as companies realize loyalty may be better than the cost savings of underpaying or refusing to promote employees, but, it will be a long time before it swings fully in the other direction.
Employees quit all the time. Most of them follow the historical etiquette of giving notice two weeks ahead of their date of departure, though there’s technically no legal requirement if a contract doesn’t specify it. Part of living in a culture where most employment is “at-will” means that employees are free to sever their contract at any time, for any reason, and move on.
Incidentally, this may be in peril, as healthcare workers in Wisconsin are currently embroiled in a lawsuit. Several workers quit to take better offers at a different facility. The original facility (which refused to pay them competitive rates) sued to prevent them from taking on their new jobs. They cite difficulties in replacing the departing employees, but they also refused to look, and refuse to pay competitive rates, so we’ll see how it shakes out.
All of this leads to a tricky situation. Employees submit their two weeks’ notice all the time, so it’s inevitable that sooner or later, one of them will change their mind. It can happen for all sorts of reasons:
- Maybe their job offer fell through.
- Maybe they initially thought they would have the money to support themselves while seeking a new job but realized they won’t.
- Maybe, someone they talked to – a coworker, a manager – convinced them to change their mind.
Whatever the case, now you have an employee who has expressed their desire to quit but has come back saying, “actually, can we forget about that?” They’ve changed their mind. What do you do?
In the Event of an Emotional Decision
The first potential scenario is when an employee, faced with a problematic report, a denied vacation request, a sub-par raise, a lack of promotion, or another negative event, decides to quit. “I’ve had it up to here with this place,” they say as they storm out. “I quit!”
In these cases, a company must tread carefully. If you decide to accept this resignation and take action to implement it (like canceling their account access, revoking their keycards, and beginning the process of terminating employment), this is viewed as accepting the spur-of-the-moment resignation. The problem is a decision made in the heat of the moment is not necessarily considered a real decision.
In these cases, if the employee changes their mind right away and wants their job back once they’ve cooled off, only to find that their accounts are terminated, and their employment contract severed, they could potentially pursue an unfair dismissal claim.
“If the employer does not allow an employee to retract a heat-of-the-moment resignation or seek confirmation following a resignation where the intent is ambiguous, they may be at risk of an unfair dismissal claim as a tribunal could conclude that the employee has not resigned, but rather has been dismissed by their employer.” – Rradar.
By giving the employee a chance to cool down and retract their decision, you protect yourself and confirm whether or not the employee is genuinely resigning.
“In Ali v Birmingham City Council  EAT 0313/08, Mr. Ali resigned suddenly and under pressure. The employer gave him half an hour to reconsider, and once that time was up, he confirmed that he still wanted to resign. Four days later, having changed his mind, he attempted to withdraw his resignation, but the employer refused to accept the withdrawal. When the case went to law, the Employment Appeal Tribunal said that four days’ delay indicated that it was not a ‘heat-of-the-moment’ decision and that the employer had given him a reasonable opportunity to reflect on his decision.” – Rradar.
In the case of an emotional resignation, you will want to assess three things before accepting the resignation.
First, determine what led up to the resignation and whether or not it’s a situation that will reoccur. An employee who threatens to quit over everything whenever they don’t get their way is a disruption. A sustained pattern of, essentially, holding their employment at ransom is not healthy for the business, and the business may be well within its rights to terminate the employee because of it.
On the other hand, if it was something that can be handled, such as internal discrimination where the responsible party can be terminated, a paperwork issue that can get resolved, or a promotion that can be held for reconsideration, keeping the employee on might be the better option.
Second, you want to examine the repercussions of keeping the employee employed or not. For example, if the employee has significant institutional knowledge, keeping them employed at least long enough to document that knowledge or train a replacement can be a good idea. On the other hand, if they have a history of poor conduct, this outburst can be the final straw that ends their contract.
Third, you should assess the likelihood of the employee filing a wrongful termination claim if you accept their resignation. The longer you give them to rescind, the less likely they will win it, but a case can still be time and resource-intensive.
In the Event of Changing Circumstances
In some cases, an employee is parting ways, not out of emotional turmoil, but amicably. They got a better offer, or they’re applying to better jobs and have a promising lead. Alternatively, maybe they have family circumstances that necessitate them resigning.
Then, those circumstances change between putting in their notice and the termination date.
- Their alternative offer fell through, and now they’re facing unemployment instead.
- The alternative offer proved to be worse than expected, and now the employee is reconsidering.
- The family they needed to move to care for no longer needs their assistance, for good or ill.
- Upon review, the accommodations they requested can be granted, making them change their mind.
That fourth option, for example, might include remote work. A good employee might consider resigning because they want to move, and they know company policy prohibits remote work, but upon review, your company decides to change the policy.
Are you bound to accept their resignation regardless? As you might expect, the answer is no. If your employee chooses to rescind their notice, and you want to keep that employee around, you can do so without issue. You are not legally bound to fire them, and, if you do, the employee may be able to sue for wrongful termination.
If the employee chooses to quit and later asks to retract their resignation, but you prefer to let them go, you can still do so. As mentioned above, if it wasn’t a moment of passion, you have a solid defense should the employee want their job back, especially if you’ve taken significant actions like canceling health coverage, paying out vacation time, and so on.
That holds especially true if the employee wants to come back after their termination date. In the past, there have been people who “quit” for a few days or weeks at a time, usually so they can work around having vacation time denied and take a vacation anyway. You are not obligated to take them back after an event like this happens.
“If a long-term employee gets dismissed without notice, the employer will likely owe a substantial payment upon termination. But if that employee quits, the employer will owe nothing. That’s what was at stake in one recent Ontario case where the court considered whether an employee could rescind her resignation.
- English v. Manulife Financial Corporation, 2018 ONSC 5135 (CanLII).
The employee had given her employer written notice of her intention to retire at the end of the year. But, a few weeks later, she changed her mind. Unfortunately, the employer told her they would “honor her notice of resignation.”
She sued for wrongful dismissal. The employer argued that she quit. The employer won. The court held that the employee wasn’t allowed to rescind her resignation in the circumstances.” – Ben Hahn.
While the above example is from Canadian law, American law is often very similar, but favors the company even more.
The Company’s Risk
In general, determining whether or not you can – or should – accept a revoked resignation comes down to weighing the risks and rewards for the company. There are several risks you should consider.
The risk of wrongful termination suits.
The first risk is the risk of the employee whose resignation you accepted turning around and suing for their job back. A case like this comes up every few years, and different regions have different precedents. It’s difficult to say with certainty which way a court will rule, and a lot of it depends on factors such as how much time passed between notice and acceptance, what emotions were involved, and what the context may be.
Many courts favor the business, and “at-will” employment is often used to protect the company from being required to re-hire the departed employee. However, this isn’t a hard and fast rule, and even if your company wins, lawsuits can be expensive.
The risk of losing valuable resources and knowledge.
In some cases, with an amicable resignation, your departing employee takes a lot of valuable knowledge with them. You might want to draw upon that knowledge to train a replacement, build a knowledge base, or otherwise use it to replace them, and a meager two weeks of notice isn’t enough to do that.
Thus, it’s a boon to the company when those employees ask for their job back instead. There’s no risk to accepting them back, other than the disruption that it causes. In fact, it can often be a good “kick in the pants” to hire and train redundant workers to share such institutional knowledge.
The only caution is that you should not rush to transfer institutional knowledge, train a replacement, and then fire the employee who tried to quit. This process can trigger wrongful termination. Plus, it’s just plain rude.
The risk of retaining a disruptive employee.
In cases where the employee who quit and wants their job back is disruptive or has conduct issues, accepting their resignation can be a dangerous play. A suitably disruptive employee may be willing to sue for their job back, and it makes it more difficult to terminate them for conduct later, though not impossible. However, if their conduct is sufficiently documented, it can be used as a defense against bringing them back.
This also brings with it the risk of “employment blackmail,” where employees threaten to quit if they don’t get their way. This “blackmail” can exploit the company in a way that can be disastrous. If it works, and the employee is granted their demands, others may follow suit. Of course, calling their bluff can also be dangerous if they quit and you did, in fact, need them around.
The risks a company takes when accepting a resignation are not small, but in some cases, they can be outweighed by the risks the company assumes in accepting the revocation of resignation. Unfortunately, there’s no one correct answer; you must examine the circumstances and make the best decision you can at the time.
To circumvent the issue entirely, use employment contracts instead of relying on at-will employment. There’s more overhead and more risk to making a poor hiring decision, but more protection against severed contracts. Is that decision right for you? Every company is different, so only you can say.
Have any questions or concerns regarding what to do if your employee changed their mind about quitting? If so, be sure to leave a comment down below, and we’ll get a conversation started! As outlined in this post, it can be a tricky situation to navigate properly, so we’d be more than happy to assist you in figuring out what would be best for your company.
Andrew Greenberg’s roots in recruiting date back to 1996. He has experience both on the agency-side and corporate-side of the staffing business, with a focus in the financial services space at companies like Bloomberg and UBS. He also has core experience with information technology staffing, and has worked for major software companies such as SAP Business Objects and IBM/Informix Software. To get in touch with Andrew, you can reach him by email or by phone at (800) 797-6160.