Is it possible to withdraw a redundancy notice given to an employee? And is the employee obliged to continue working in the role if you do?
Businesses may encounter a scenario where it is necessary to make an employee redundant, only to backtrack at a later date and decide to keep them on.
For example, a company may give notice of termination of employment to several employees because their positions will be redundant at the end of the month. All the affected employees are given their notice of termination and redundancy pay details and are notified of their last working day.
However, management then decides that one of the positions will remain. The company intends to provide a letter notifying the employee that redundancy has been postponed and the position will remain for the immediate future.
If the employee refuses to accept the offer of continued employment and indicates he wants to take the redundancy pay, what happens next?
Let’s assume the employee does not already have another position lined up. What then?
Can a company withdraw a notice of redundancy?
Industrial courts and tribunals have generally determined that notice of termination of employment, once given by an employer, cannot be withdrawn, except with the agreement of an employee. The reason for this is an employee may have already obtained employment with another employer, with the result that if an employer could unilaterally withdraw the notice, the employee could be bound by two concurrent contracts of employment.
In this case, if the employee does not agree to the notice being withdrawn by the employer, the original notice of redundancy will stand. This means the termination is ‘at the initiative of the employer’ and is not considered a resignation.
The employee is not required to provide a reason to the employer justifying their refusal to accept continued employment. If the employee refuses the employer’s offer to withdraw the notice of termination, it would be regarded as a termination by the employer (redundancy) for the purpose of determining entitlements payable on the termination of employment.
Withdrawal of notice of resignation
The same logic applies to the withdrawal of notice by an employee.
The requirement for an employee to give the appropriate period of notice is to allow an employer sufficient time to fill the position. If an employee could withdraw notice at any time it could result in the replacement employee being left without a job, having already terminated their employment with the previous employer to accept the vacated position.
An exception to this is where the mental state of the employee at the time of the resignation meant the giving of notice was not considered a voluntary act.
Heat of the moment resignation
If the words of a resignation are unambiguous then an employer is entitled to treat them as such.
However, words may be said by an employee “in the heat of the moment”, which industrial tribunals refer to as ‘special circumstances’. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and accept it forthwith.
A reasonable period of time should be allowed to lapse and if circumstances arise that put the employer on notice that further enquiry is desirable to see whether the resignation was really intended, then such inquiry is ignored at the employer’s risk.
An employer runs the risk that evidence may be forthcoming which indicates that, in the ‘special circumstances’, the intention to resign was not the correct interpretation when the facts are judged objectively.
The bottom line: Once a notice of termination of employment has been given to an employee, the notice cannot be withdrawn except by mutual agreement of both parties.
