The instinctive reaction may be to treat the conduct as a resignation. However, UK employment law takes a cautious approach to ambiguity, and misinterpreting an employee’s conduct can expose employers to significant unfair dismissal risk.
Understanding the legal framework is critical to making defensible decisions and avoiding costly tribunal claims.
When determining whether an employee has resigned, tribunals apply an objective test. The question is not what the employer assumed, nor even what the employee privately intended, but how a reasonable employer would have interpreted the words or conduct in context.
Courts and tribunals will examine all surrounding circumstances, including events before and after the incident. The nature of the workplace, prior communications, any history of disputes, and subsequent clarification attempts all matter. If the employee’s behaviour or words are ambiguous, tribunals are reluctant to treat either as resignation. Where doubt remains, it is likely a finding will not be made in favour of the party seeking to rely on the ambiguity. In practice, this means the employer bears the risk if it asserts that unclear conduct amounts to an employee’s resignation.
Employers should therefore resist the temptation to fill in gaps or make assumptions where the employee’s intention is not explicit.
Historically, there have been suggestions in earlier case law that an employee’s conduct could amount to an implied resignation if it would lead a reasonable employer to believe the contract had been terminated, as in Harrison v George Wimpey & Co Ltd.
However, this approach has been firmly superseded by subsequent authority. In London Transport Executive v Clarke, the Employment Appeal Tribunal rejected the notion of “constructive resignation” or “self-dismissal.” Instead, the “elective theory” applies. Under this principle, even if an employee commits a repudiatory breach of contract, such as prolonged unauthorised absence, the contract does not automatically terminate. The employer must elect to accept that breach. In most cases, this means actively dismissing the employee.
An employer cannot simply deem an employee to have resigned. If it does so without unequivocal confirmation of their resignation, a tribunal is likely to find that the employer terminated the contract – in other words, that there was a dismissal. The only remaining question will then be whether that dismissal was fair.
There are circumstances where prolonged unauthorised absence can justify dismissal. In Nestlé (UK) Ltd v Thacker and Heskey v Adwest Rearysby Ltd, unauthorised absence formed the basis of fair dismissals, particularly where warnings had been given and procedures followed.
The key point for employers is procedural fairness. Before deciding to dismiss, employers should:
Emotions often run high in workplace disputes. An employee may storm out, send an angry email, or use language suggesting they are “done.” Employers should treat such situations with caution.
In Feltham Management Ltd v Feltham, the Employment Appeal Tribunal emphasised that conduct was insufficient to establish resignation. If the employer treats the contract as terminated without clear evidence of resignation, its actions may themselves amount to dismissal. Similarly, ceasing pay or issuing a P45 immediately after a dispute may strengthen an argument that the employer terminated the contract and thereby dismissed the employee.
Where resignation is not clear and unequivocal, employers should pause, clarify, and document.
To reduce litigation risk, employers should adopt a structured and cautious approach when faced with ambiguous conduct or AWOL situations.
Employers should investigate thoroughly by reviewing all relevant communications and consider the broader context, including any recent grievances, disputes, or personal circumstances.
It is critical to communicate clearly – write to the employee seeking clarification of their intentions. Invite them to confirm whether they intended to resign and provide a reasonable timeframe for their response.
Employers should allow a cooling-off period where appropriate in cases where an employee has walked out during a workplace dispute or similar circumstances. Tribunals recognise that employees may make rash statements in the heat of the moment but providing an opportunity to retract or clarify can prevent later disputes. Employers should also avoid precipitate administrative steps such as issuing a P45 (mentioned above), removing system access, or stopping pay without clear confirmation of resignation which may later be relied upon as evidence of dismissal.
Finally, if treating the conduct as misconduct or unauthorised absence, employers should follow a fair disciplinary process. Ensure compliance with your internal procedures and the ACAS Code of Practice. As noted above, if an employer incorrectly treats ambiguous conduct as a resignation, a tribunal is likely to find that the employer dismissed the employee. The employer then bears the burden of showing, on the balance of probabilities, that the termination was fair.
When an employee goes AWOL or behaves ambiguously, the safest course is rarely the quickest one. The current legal position makes it clear that employment is rarely fairly ended through the ambiguous conduct of an employee and employers must make a conscious, procedurally fair decision if they wish to end the employment relationship.
By applying an objective assessment, investigating fully, communicating clearly and following proper processes, employers can significantly reduce the risk of an adverse employment tribunal finding.
If you would like further information on this topic do not hesitate to contact a member of BTO’s employment team.
© 2026 BTO Solicitors LLP | V.A.T. No: 260371482 | All rights reserved.
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