When is a resignation, not a resignation?
Posted on 1st May 2017 at 16:02
No it’s not a joke .. but it can be a bit of a challenge as an employer. So let's have a look at some of the common questions that arise as part of the resignation process.
Can you refuse an employee’s resignation?
The short answer is no you can’t. Even if you really don’t want the employee to leave you cannot reject a resignation providing the employee has given you, as the employer, proper notice.
What is proper notice? It is the notice set out in the employment contract. This will outline what amount of notice an employee is required to give and how they should serve it. If there is nothing detailed in the employment contract this is deemed to be ‘silent’ and it is an implied term then that the employee must give ‘reasonable notice’ to their employer, which will always be at least one week.
Can an employee resign with immediate effect?
Technically if an employee chooses to do this they are in breach of the terms of their contract of employment as they are not giving the proper notice to terminate their employment.
In this situation there are a number of scenarios open to the employer;
The resignation could be accepted, thereby terminating the contract of employment on that day. This may be beneficial in that the employer does not pay the notice period nor do they have a disillusioned employee working for them for the duration of their notice period.
The employer could refuse to accept the resignation and hold the employee to their notice period. IF the employee still leaves with immediate effect, the employer could pursue a claim against the employee for breach of contract. It is rare for employers to do this unless there is a case for the recouping of a financial loss incurred by the employee’s refusal to work their notice period.
The employer could seek an injunction from the courts to force the employment relationship to continue for the duration of the proper notice period. Whilst most employers are unlikely to go to these lengths it has bene seen in cases of senior executives who have the potential to cause significant disruption and who try to leave without giving proper notice.
Can an employee resign before or during a disciplinary process?
This is quite a common situation, particularly where an employee is facing disciplinary allegations that may lead to dismissal. Resigning before an outcome would avoid having a (gross) misconduct dismissal on their record.
If the resignation is with immediate effect then the same rules will apply as have already been mentioned. It is more likely though, in this situation that an employer would be prepared to accept an immediate resignation (not least because it avoids the actual need to dismiss the employee)
If the employee resigns with notice, then the employer has the right to continue the discipline process, which may result in the employee’s earlier dismissal.
It is worth noting that if an allegation is likely to be notified to OFSTED or other regualtory body, should it be proven, this may affect the decision to allow the resignation.
Best practice would encourage the employer to inform the employee that despite having accepted their resignation, during the disciplinary process, they reserve the right to continue with any investigation process that may have commenced. The employer would then ensure there were notes on file from the investigative process documented should they be called upon to defend any constructive unfair dismissal claim at a later date.
Can an employee withdraw their resignation?
Once an employee has given the proper notice it is effective and can only be withdrawn if the employer agrees. There is of course, no obligation on the employee to do so. There are always exceptions and the final decision rests with the employer.
But what if the employee has resigned in the ‘heat of the moment’?
Case law has developed a limited exception to the general rule that an employee cannot withdraw their resignation if notice has been properly given. This generally applies to cases where an employee resigns in situations where, as example, it is given in anger during an argument or when under an unusual amount of pressure.
In such cases, employers are expected to give the employee a reasonable amount of time (maybe up to a couple of days) to calm down and reconsider whether they wish to continue with their resignation. Failing to do so and treating the employee as if they have resigned, could ultimately result in a finding at the Employment Tribunal of unfair dismissal because there was not a valid resignation but instead the actions of the employer actually amounted to a dismissal.
So it is worth following up on any surprise resignations to make sure the employee really does mean what they day.
If you get a situation that you are not sure about then please take some advice. If we can be of assistance then please give us a call.
Share this post: