When it comes to employee walkouts and resignations, employers must carefully assess various factors, risks, and costs before determining the optimal course of action.
Tempers can get frayed in the workplace, from minor irritations about rotas to colleagues who tolerate each other through gritted teeth. However, they can occasionally boil over, and before everyone knows it, someone has packed up their things and flounced out the door. Unfortunately, employees walking off the job is a common issue for many employers in the UK. If an employment contract specifies a required notice period, employees are legally bound to comply with it. Adhering to the notice period is crucial to avoid a breach of contract and other legal consequences.
With these employee walk-out situations, the employer is often left bemused as to what to do next—is this walk-out a resignation? Should I allow them to calm down and see if they return the next day?
In this article, we look at employee walkouts and the HR quandaries that surround them.
Q: Is an Employee Walkout Considered a Resignation?
Dealing with employee walk outs can be confusing. Employers are often tempted to take a walkout as a resignation when an employee has walked out of work; after all, the employee has upped sticks and left mid-shift, so why not conclude they have resigned?
A resignation should be tendered in writing and be clear as to exactly what the employee’s intentions are. Providing a written resignation helps clarify the employee’s intentions and avoids any ambiguity. If the employee’s intentions are ambiguous in any way when the employee walk out happens, then chances are it’s not a resignation.
Understanding notice periods and their legal implications is crucial. Failure to adhere to notice periods can impact employment rights and final pay entitlements.
In the case of an employee walkout, if the employer decides the employee has resigned when they haven’t, and they then issue the P45, the employee may be entitled to conclude that they have been dismissed. If the employee has over two years of service, this could result in a claim for unfair dismissal.
Q: Can A Workplace Walkout and A Verbal Indication of The Employee’s Intention to Leave Be Classed as A Resignation Without a Notice Period?
Even cries of ‘Stick your job!’ on the way out during the workplace walkout shouldn’t automatically be taken as a cast-iron guarantee of an employee’s intentions to resign because they are clearly acting in haste, and this scenario when an employee walks out of work usually gives rise to immediate regret.
If a verbal resignation takes place when an employee walked out of work, but one that is being tendered in haste; this usually indicates that all is not well and can be a red flag for a potential constructive dismissal claim, i.e., that the employee feels they have no option to resign with immediate effect and without serving notice to their employer. Perhaps there has been a contractual breach committed by the employer, such as a repeated failure to pay the employee on time, or they have been subjected to an act of discrimination, such as bullying or harassment based on a protected characteristic. Serious breaches of contract by the employer can justify walking out without notice.
If the employer simply ‘snatches their hand off’ and accepts their verbal resignation while the employee walks out of work, they miss a vital opportunity to try and identify and remedy the dispute. This will make it harder for the employer to defend the employee’s claim that the employer’s actions were intended to bring about their walkout in the workplace and resignation.
Instead, once the employee walks out of work the employer should allow them time to cool down and then try to ascertain the true intention of the employee by making a telephone call and/or writing to the employee. If the employee is adamant that they do not wish to return following the workplace walkout or they refuse to respond to your attempted contact, their verbal resignation following a walkout can be accepted.
Q: If an Employee Walks Out and Then Returns to Work, Are They Entitled to Pay, And Can the Employer Take Action?
An employee walkout is technically an unauthorised absence and therefore a breach of contract. In such cases, the concept of ‘final pay’ becomes relevant, as employers have legal obligations to disburse owed wages and entitlements, even if the employee resigns without notice.
There would be no requirement to pay the employee, and subject to a disciplinary investigation, the employee may also face formal disciplinary action. Depending on the circumstances and the type of role, walk outs in the workplace may be deemed serious or potentially gross misconduct.
Q: If an Employee Walks Out and Goes Off Sick for Work-Related Stress, Are They Entitled to Sick Pay, and What Should Employers Do?
Assuming the employee follows the correct absence and reporting procedures and submits a medical certificate after 7 calendar days of absence, they will be recorded as being off sick, and any entitlement to sick pay will be processed. Though the portion of time when the employee walked out of work will not be paid.
Work-related stress often manifests through disputes and formal grievances, but sometimes an employee can react to their stress by walking off shift. This is not an acceptable way to raise work-related concerns, but the impact of stress, especially in the long term, can be detrimental and cause people to act out of character.
Often, employees will need some time away from work to gather their thoughts before they feel able to discuss their concerns. Do reach out to the employee and let them know that you want to resolve their concerns and that you will be in touch in due course, while also letting them know you are available if they want to speak to you.
If An Employee
When managing employee walkouts it is important to ensure that employees are reminded of their rights to raise a formal grievance, but it is not always necessary for an employee to do so, and they shouldn’t be pressured.
If an employee walks off the job and the reason is work-related stress due to a strained employment relationship, mediation may be an effective way of resolving the issue. This can be via the use of mediation services or a meeting with someone impartial to the dispute with the aim of ‘clearing the air’.
It’s important to remember that the employer has a duty of care to the employee, and if they are absent due to work-related stress, the onus is on the employer to make reasonable attempts to resolve those stresses. Effectively managing employee walks outs like this can often be the difference between an employee being absent long-term sick and submitting a constructive dismissal claim or being supported back to work with their dispute resolved.
Yes, a worker’s walk out can be dealt with, but get the employee back to work first and take any grievances they may have off the table first.
Q: If an Employee Repeatedly Threatens to Walk Out of Work, Should They Be Asked to Resign?
If an employee is threatening to walk out of work, as in the example above, this indicates an underlying problem, and the employer should aim to get to the bottom of it.
When filing a claim for constructive dismissal, it is important for the employee to demonstrate efforts to find a new job to show they are mitigating their losses after leaving their position due to unacceptable conduct from their employer.
The employer should remind their employee that threatening to walk out is not acceptable and forewarn them of the implications of doing so, such as disciplinary action, loss of pay, etc., as well as remind them of the correct way to raise their concerns.
However, asking for a resignation is asking for a claim, so this approach is best avoided.
Employer Dos and Don’ts for Employee Walkouts:
When dealing with employee walk outs you must carefully consider your best options, including whether to negotiate with your employee in order to find the best solution. So, what should you do?
DOs:
- Make contact with the employee– if they don’t respond, call their emergency contact to make sure they are ok.
- Ascertain the reasons for their walkout– walking off shift is not acceptable but that doesn’t mean any genuine concerns prompting the walkout are somehow invalidated by the employee walking out.
- Try to resolve any disputes– this can be done informally or via the grievance procedure.
- Understand notice periods– knowing the legal implications of notice periods is crucial. It impacts employment rights and final pay entitlements, especially if an employee quits without formal notification.
DON’Ts:
- Don’t assume the employee has resigned if the employee walks out of work unless their intentions were absolutely clear.
- Ignore it – the employee is wrong to walk out, but the employer still has a duty of care to act responsibly and reasonably.
And finally…Do contact Avensure at the earliest opportunity. We can assist you in determining how best to approach to employees walk out situations, contact and provide guidance on the process and all correspondence needed when dealing with an employee who has walked out.
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