Letter retracting heat of the moment dismissal

Use our letter to clarify the position with an employee who has been unintentionally dismissed in anger in the heat of the moment. You do need to act quickly though if you want to salvage the situation.

Heat of the moment

It’s not uncommon for supervisors or managers to dismiss employees on the spot during an argument or disagreement. They can lose their temper just as much as employees can, although hopefully they’ll know better than to do this, however much they’re provoked. As a general rule, clear and unambiguous words of dismissal said to an employee will constitute a dismissal. The key issue is whether the employee was objectively entitled to assume that the dismissal decision expressed was a conscious and rational one and so can accept it at face value. Normally, an employer can’t retract a dismissal without the employee’s express agreement. However, where the dismissal took place in the heat of the moment and, when assessed objectively, it wasn’t really intended, seriously meant or conscious and rational and the employer then takes step to retract it almost immediately, they will be able to do so. Otherwise, instant dismissals will be procedurally unfair, enabling an employee to claim unfair dismissal if they have sufficient continuity of employment. Therefore, as an employer, you should contact the employee as soon as possible after the incident to try to sort the issue out amicably - it’s better to write the same day as time is of the essence here. Never leave it for more than a day or two. Find out what happened from the supervisor/manager and any other witnesses and then contact the employee to set out your view of the situation. Our Letter Retracting Heat of the Moment Dismissal begins that process. It sets out that the supervisor/manager didn’t genuinely intend to dismiss the employee and that, in the heat of the moment, they overreacted in their handling of the situation. It also states that, having objectively considered the situation, you are of the view that their dismissal wasn’t really intended and seriously meant and wasn’t a conscious and rational decision. It then goes on to state that you therefore now retract their dismissal and want them to return to work as soon as possible, so it asks them to make contact as a matter of urgency with a view to sorting things out so they can immediately return to their job.

Subsequent action

If the employee returns to work, there’s nothing to stop you instituting disciplinary proceedings against them if they were aggressive and/or abusive towards their supervisor, manager or fellow employees in the events leading up to the unintended dismissal. You will need to investigate the situation and take witness statements in the normal way - and this may involve investigating the supervisor’s or manager’s behaviour too. If the employee refuses to return to work and maintains they have been dismissed, there’s nothing more you can do if you’ve already done all you can to try to remedy the situation. If they then claim unfair dismissal, you will need to argue there wasn’t a dismissal because it took place in the heat of the moment, it wasn’t really intended, seriously meant or conscious and rational, and you then took immediate action to retract it. However, even if this is accepted by the employment tribunal and the employee is taken to have resigned instead, if the words or action by the supervisor/manager were such as to destroy the mutual trust and confidence in the employment relationship, the employee could still assert it’s a constructive dismissal.