The past few days have seen a couple of high profile resignations. Boris Johnson’s Director of communications Lee Cain has reportedly tendered his resignation due to ‘in-fighting’ in No.10 and the resignation of the FA Chairman Greg Clarke following his comments of a racially offensive nature.
Often when we hear of high profile resignations they are often accompanied by phrases like ‘he was called upon to resign’ or ‘she had to go’. Not all incumbents jump before they are pushed however, take SNP MP Margaret Ferrier for example, who famously flouted self-isolation rules by travelling on public transport whilst infected with COVID-19. She has resisted calls for her resignation and will appear before Parliament this week in her first appearance since the scandal broke.
Where resignations are concerned, there are a few commonly held myths and plenty of traps lying in wait for what appears to be something relatively straight forward. In this article we look at the circumstances surrounding resignations. Namely, what constitutes a resignation, whether someone be asked to resign and what happens when someone asks to retract their resignation.
What is a resignation?
Seems an obvious question to ask. Surely a resignation is where someone informs their employer that they will be leaving their job, its as straight forward as that. Or is it?
Consider how the resignation is tendered first of all. It is a verbal resignation? If so, it isn’t worth the paper it isn’t written on, nor is the employers verbal acceptance. Instead its open to dispute, so get it in writing and accept it in writing.
What about the resignation letter that’s 5 pages long citing a long list of complaints? It’s tendered in writing, so surely its ok to accept it in writing and besides, this employee has been a pain in the neck for ages. Result!
Not necessarily. You may read through the concerns set out in the letter and disagree with the content; you may also be itching to accept and wish them well in their life pursuits but this is where alarm bells should start ringing, especially if the employee has completed over two years’ service with the company or they are alleging discrimination.
Why? If they are resigning citing various concerns/grievances as the reasons underlying their resignation, they may be contemplating bringing a claim for constructive dismissal and/or discrimination.
What is constructive dismissal?
Constructive dismissal or ‘constructive unfair dismissal’ is where an employee feels that they have no choice but to resign because of something their employer has done e.g., changing their terms and conditions without good reason or consultation. Similarly, they may feel that they have no choice but to resign because of something their employer has not done e.g., repeatedly failing to pay them on time.
Remember- discrimination claims do not require any qualifying service and their awards are uncapped, so a resignation alleging discrimination is a huge cause for concern. Please see our previous article on discrimination claims and promoting equality and diversity.
So, before you gleefully proceed with a resignation acceptance under these circumstances, make sure you discuss the resignation with the employee with a view to trying to resolve the issues. This may be done informally or via the grievance procedure.
Please see our previous article on resolving workplace disputes here.
A member of my staff raised a formal grievance, but they have now tendered their resignation before it could be investigated or resolved. Now they’re leaving I don’t have to worry about their grievance, do I?
Yes you do. As stated above, its vital to try and resolve any disputes underlying a resignation.
You may not always be able to do so but to ignore it, or allow the employee to leave knowing a dispute has been raised, will not do you any favours if the case were to proceed before an Employment Tribunal.
Seek advice from our experts at the earliest opportunity so that we may provide you with bespoke, practical advice.
Can you ask an employee to resign?
This is never a good idea.
If someone says they wish to resign and the resignation is not contentious in any way, then by all means ask that they confirm their intentions to you in writing.
However, if for example someone is facing disciplinary proceedings or is likely to be made redundant, it is often felt that giving them the option of resignation may be a ‘kinder’ option. Instead it places you at risk of a constructive dismissal claim and if they refuse to resign, any attempt to then proceed with a fair procedure (such as a disciplinary or redundancy consultation) will be placed in jeopardy by the fact you have already asked them to leave, this paves the way for an unfair dismissal claim.
All in all, it’s best avoided.
What if an employee asks me if they should resign?
See above and avoid answering in the affirmative.
What about notice, does an employee have the right work their notice?
Employees have a right to notice but not necessarily to ‘worked’ notice. Usually though it will depend on the contract. Many contracts stipulate that the employer has the right to pay in lieu of notice (PILON) which means that an employee can leave straight away and the employer pays them for their notice period.
What if an employee refuses to work or provide notice, are they still entitled to be paid?
No. They have breached their contract by not providing notice and lose any contractual entitlement to paid notice.
What about garden leave?
Garden leave is where someone is not required to work their notice but remains employed by their employer during their notice period. The benefit to the employer is that the employee is required to be available for work or for any work related queries during their garden leave.
It can only be used where the employer has a contractual right to do so as it effectively prevents an employee from undertaking paid employment during their garden leave.
Can an employee retract their resignation?
They can ask but the employer doesn’t necessarily have to agree.
However, this will depend very much on the circumstances, such as how long the employee has worked for you, the length of time between tendering their resignation and their intended leave date, whether attempts have been made to recruit a replacement and of course if the resignation was contentious in any way.
There are still legal risks here, so it’s important that advice is sought.
And finally….. remember these key points:
- If it isn’t in writing, it isn’t a resignation.
- Avoid acting in haste. A cooling off period is advised where resignations are concerned so try not to snatch the employee’s hand off and hand them a box for their belongings before the ink is dry on their resignation letter.
- A resignation citing concerns is a concern for you. Don’t ignore the concerns raised, try to get to the bottom of them and attempt to resolve them.
- Asking for a resignation is asking for a claim- please don’t do it.
Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.