The government may argue in the Supreme Court that its Article 50 notice to leave the European Union could be revoked, according to press reports. This would contradict its argument in the High Court, that it is "common ground between the parties that a notice under Article 50 cannot be withdrawn, once it is given". However, it is a position supported by the British lawyer who wrote Article 50, according to other recent reports.
The government's purpose in changing tack would be to bolster its case for the Supreme Court to overturn the High Court's ruling that Parliament must vote before Article 50 is invoked. It would enable it to argue that service of the notice will not inevitably lead to rights created by statute (the European Communities Act 1972) being extinguished by use of the royal prerogative. This was the chief constitutional problem identified by the High Court.
While this may be a question of high politics, it highlights an issue that employment lawyers are often called to advise upon – can notice, once served, be withdrawn or rejected? Put another way, can an employee change his or her mind about leaving or an employer change its mind about dismissal?
If employment case law is any guide, the government may have an uphill battle. It is long established that an employee who gives clear, unequivocal notice to resign cannot subsequently withdraw that notice, even if as little as an hour has passed since it was served (Riordan v War Office).(1) Nonetheless, courts and tribunals have been willing to accept that 'heat of the moment' resignations may not amount to sufficiently clear and unambiguous notice of the employee's intention to leave. This is particularly so if the contract requires written notice of termination or the employee was in a state of anxiety at the time, giving him or her the opportunity to argue that the apparent notice was ineffective.
Employers should also be careful, as similar principles apply when they give notice. In Société Générale v Geys,(2) the Supreme Court ruled that purporting to terminate a contract with immediate effect will be ineffective if the employer's conduct amounts to a repudiatory breach which the employee is entitled to reject, electing to affirm and continue the contract instead. In the notice letter, the employer should make clear what contractual termination provision it is relying on and apply it properly.
An employer's response to an employee giving notice will inevitably depend on its view of the employee in question. In some cases, it may be relieved. If this is the case with a 'heat of the moment' resignation, the employer would be well advised to follow up quickly with written acknowledgement and acceptance of the employee's resignation, confirming the termination date. This reduces the chances of the employee arguing successfully at a later date that he or she can unilaterally change his or her mind. In other cases, the employer may be pleased if a valued individual were to decide against leaving. If so, there is nothing to stop the parties mutually agreeing that notice is withdrawn and things can carry on as before.
It is, perhaps, a moot point whether the European Union regards the United Kingdom as a 'flouncer' that it is happy to be rid of, or a valued colleague that it would want to stay. In any event, the interpretation of Article 50 is a matter of EU, not English, law – raising the tantalising prospect of a referral to the European Court of Justice. But the wider point remains: if you do serve notice, it pays to be sure that this is definitely what you want to do.
For further information on this topic please contact Colin Leckey at Lewis Silkin by telephone (+44 20 7074 8000?) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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