In today’s fast-paced job market, it’s common to see employees resigning to pursue better opportunities, sometimes even at the spur of the moment. But what happens if an employee changes their mind and wants to withdraw their resignation? Can the resignation be rescinded, or is it final once given?

WHEN IS A RESIGNATION VALID?

Under the Employment Act 2007, resignation is seen as a unilateral act—meaning it’s solely the employee’s decision. The employee can communicate their intention to resign verbally or in writing, and it’s deemed effective immediately upon notification. Importantly, the law does not require the employer’s acceptance for the resignation to be valid.

The Employment and Labour Relations Court has reinforced this point. In cases like Herbert Wafula Waswa v Kenya Wildlife Services (2020 eKLR), the court highlighted that a resignation does not depend on the employer’s acceptance. The employee’s decision alone triggers the termination of the employment contract.

CAN AN EMPLOYEE RETRACT A RESIGNATION?

Generally, once an employee has tendered their resignation, they do not have the automatic right to withdraw it. A resignation is akin to a notice of termination, which doesn’t require the other party’s consent to be valid.

However, in some instances, the courts have shown flexibility, particularly when special circumstances are involved. For example, in the UK case of Kwik-Fit [GB] Limited v. Lineham (1992), it was found that if an employee resigns in the “heat of the moment”—perhaps due to immediate pressure or emotional distress—the employer should take a moment to investigate the true intentions behind the resignation. This includes assessing whether the resignation was impulsive or if there were external pressures influencing the decision.

KEY FACTOR: TIMING

Timing plays a crucial role in determining if a resignation can be retracted. In the case of Edwin Beiti Kipchumba v National Bank of Kenya Limited, the employee attempted to withdraw their resignation the day after submitting it, citing coercion. However, the employer swiftly accepted the resignation, leaving no room for a “cooling-off” period or further inquiry. This case highlights that the court may consider allowing the retraction—especially if the resignation was impulsive or due to undue pressure.

WHAT IF THE EMPLOYER AGREES?

While employees may not have a right to unilaterally withdraw a resignation, employers have the discretion to accept a rescinded resignation if they choose.

FINAL THOUGHTS

For employees, resigning is a significant decision that should ideally be well-thought-out. However, the law does provide some flexibility, especially in cases of impulsive decisions or unusual circumstances. If you’re considering taking back a resignation, act quickly and communicate openly with your employer, as timing and context are critical factors.

On the employer’s end, understanding the legal framework around resignation and rescission can guide fair and considerate responses to employees in uncertain situations.

Article written by Stella Muraguri- Managing Partner at MMW Advocates LLP Research by Pride Kabue- Lawyer, MMW Advocates LLP W: www.mmw.legal E: info@mmw.legal