Employment contracts usually come to an end in one of two ways: either the employee is dismissed by their employer, or they terminate their own employment by resigning and serving their contractual notice period. But when is a resignation actually not a resignation?
In this article, we look at 5 instances that may look like a resignation but could actually amount to a dismissal with hidden legal risks for the employer.
1. Voluntary Redundancy
Voluntary redundancy is when an employee whose position is at risk of redundancy puts themselves forward to be selected for redundancy. Usually, these are employees who may have been considering leaving anyway or who have longer service and for whom a redundancy package can seem quite attractive.
They are not, however, resignations; they are still classified as a dismissal from work.
This means that the person who is volunteering for redundancy must be facing a genuine redundancy situation (i.e., their job role has ceased or diminished). If they were not, this could still result in a constructive unfair dismissal risk for the employer.
Likewise, where a genuine redundancy did exist if an employee is asked to volunteer rather than face a fair means of redundancy selection criteria, this could also result in a claim for being constructively dismissed if the employee were to resign as a result.
2. Constructive Dismissal
Also referred to as constructive unfair dismissal, constructive dismissal is where the actions of the employer entitle or cause someone to resign.
It will be a genuine resignation, but because the employee has been ‘forced’ to resign, usually due to an act or omission by the employer that is so severe it shatters the employee’s trust and confidence, it is classified as a dismissal.
Examples of situations that may give rise to an employee resigning and claiming they have been the victim of constructive unfair dismissal are:
- Contractual breaches, e.g., withholding salary, cutting hours of work
- Failing to properly investigate a complaint or grievance
- Acts of discrimination, such as bullying or harassment due to protected characteristics such as race, disability, age, and so on.
NOTE! If the employer is about to take a course of action that they know or hope will trigger the resignation of an employee, this is prime territory for someone to claim they have been constructively dismissed, and they may find themselves facing costly tribunal action.
3. The ambiguous or hasty resignation
When an employee faces dismissal from work by their employer, they are entitled to know why they have been dismissed. Their dismissal should follow adherence to a formal procedure, such as the disciplinary procedure at work, and the employee should receive a letter clearly setting out why they have been dismissed and usually granting them the right of appeal.
In other words, if you dismissed your employee and they turned up for work the next day, it’s safe to assume the message got lost in translation somewhere.
Likewise, if an employee tenders their resignation, for whatever reason, there should be no doubt as to their intentions. If the employer is reading the resignation letter or email wondering if they have resigned or not, then this means their intentions are unclear.
Employers often make the mistake of interpreting a letter or email that states, ‘I will be resigning’ or ‘if you continue to pay my wages late, I will have no option other than to resign’, as constituting a resignation. It doesn’t! The risk of accepting an ambiguous resignation is that it becomes a dismissal from work.
By all means, ask the employee to clarify their intentions, but don’t ask an employee to resign!
Likewise, if an employee walks out, they may say that they aren’t coming back or ‘you can stick your job up your $*£!’’. Their intentions may be clear, but in this type of situation, there are usually several red flags waving, specifically an underlying dispute.
In this situation, the employee should be given time to cool down, and attempts should be made to try to resolve whatever dispute is underlying their decision to walk out or verbally resign. Otherwise, the risk is constructive unfair dismissal.
4. employee given too much notice? Reducing their notice period could amount to a dismissal.
The amount of notice an employee must give their employer in the event they wish to resign is set out in the contract of employment. This is the employment contract notice period.
Employees who have worked for less than one month (or who don’t have a contract) are under no legal obligation to provide any notice, but what happens if they give too much notice?
This might be useful if the employee is quite senior, for example, and the employee working longer than their contractual notice period provides the employer with more time to source a replacement or action a full handover. In the circumstances where an employee has decided to leave, and the employer doesn’t necessarily want them around for longer than necessary, can the employer insist they only provide the notice under the contract?
It is reasonable for the employer to remind the employee of their employment contract notice period; after all, the employee may simply have made a mistake, in which case they could submit their resignation again, specifying the correct period of notice.
In the event it is their intention to provide more than their contractual notice period, there is nothing to prevent the employee from doing this, as most contracts specify minimum periods of notice, not maximums. Therefore, if the employer tries to force an employee to leave earlier, this may amount to a dismissal from work.
5. The retracted resignation
An employee who resigns in haste may ask to withdraw a resignation.
Legally, any decision to allow an employee to withdraw a resignation should be made by all parties, which means employees don’t have an automatic right to retract their resignation.
However, if the employee immediately retracts their resignation, the employer should proceed with caution before refusing to allow the employee the opportunity to retract because, depending on the circumstances, this may entitle the employee to consider they have been constructively dismissed.
It’s vital that employers seek legal advice when it comes to resignations because even the most straightforward situations could present a legal risk. Contact our experts today.
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