But is it a real resignation? Heat of the moment and all that jazz

There are occasions when an employee appears to have left their employment without a formal resignation letter or email. It should be noted that there is no legal requirement for an employee to resign in writing, and this may lead to some confusion, and occasionally a potential court case.

No resignation letter?

In most cases the employee will resign with good intent, but verbally. For instance, a worker on a building site may inform his supervisor that he wishes to end his employment at the end of the week and has inferred that he is giving a weeks’ notice by doing so. Unfortunately, this could lead to some misunderstanding between both employer and employee. We would advise that good practice would be to follow up all resignations, (verbal and written) with an acknowledgement of resignation letter clearly setting out your understanding of the intentions of the resignation.

An example of an intention to resign may be when an employee approaches the employer to say that there is the possibility of the employee finding alternative work. In the case of Ely v YKK Fasteners (UK) Ltd 1994 ICR 164, an employee was looking to leave for an alternative job in Australia. The employee told the employer that they would be resigning in the near future although no date was provided. The job in Australia fell through and wished to stay. The employer decided that the employee had resigned. The Employment Tribunal held that there had been no resignation as no termination date was provided and one could not be established from the facts of the case.

The acknowledgement letter from the employer should confirm:

• The stated reason for the resignation by the employee
• The agreed last day of work
• The date of effective termination (which may be different)
• Any accrued holiday that may be paid out
• Any deductions such as holiday taken but not accrued; or deductions based on training agreements
• Expected timing on the P45.

The employee went AWOL?

Some employees apparently disappear from their workplace. Initially it would be a good assumption that the person has taken ill and may not be able to contact the company, such as being hospitalised. There would be a reasonable expectation that in the initial days of the absence, the employer will seek out the employee to understand the reason for their absence.

In some cases, it may seem impossible to contact a missing employee, and they may not answer texts messages or phone calls. In these cases, it would be good practice to write to the employee to request that they contact the company as a matter of urgency and to explain the reason for their absence. All attempts of contacting the employee by phone, text message, email and letter should be recorded for future reference.

It should be noted that by just assuming that the disappearance of an employee is a resignation by conduct, could lead to a future claim of unfair dismissal if the employee has over 2 years’ service. It is crucial employers follow the ACAS code for disciplinary and grievance procedures for terminating an employment contract, when taking formal action against an employee for being absent without leave.

If you have written to the employee, and tried various routes of contact, and you still have no contact back, then you should write to the employee formally to invite them to a disciplinary meeting. The meeting should follow the normal disciplinary process, and the meeting should be held, even if there is no contact from the employee (i.e. in absentia). The decision to terminate the employment contract must be recorded in the minutes.

The termination letter would be sent to the employee giving the usual rights on termination of employment. The letter should set out that any accrued holiday pay will be paid. Note that by not paying any accrued holiday could lead to a claim of breach of contract by the employer.

There are common laws around when written communication is deemed to be received. For example, that a written notice sent by first class post is deemed delivered on the second business day after posting. Consider recorded delivery options to give more certainty. It should also state whether notice delivered by electronic means, such as email or text message will be effective. Emails are instantaneous, but should still be tracked to see they have been read.

Notice pay?

In the case of an employee who is AWOL, the termination reason could be that the employer believes that there has been a ‘Resignation by Conduct’ by the employee and this there is no notice period. This could be disputed based on the facts of the case. One consideration is that in your HR policies that unexplained absence for a significant duration could be seen as breach of the implied trust and confidence of the contact, and thus considered as Gross Misconduct.

Heat of the Moment?

If an employee resigns in the heat of the moment by using unambiguous words to the effect of “I quit”, there is no duty on the employer to seek to recover the situation and investigate the employee’s true intention. There is no legal authority supporting an obligation to do so and it would, in the view of the Tribunals, place too high a burden on employers to imply any such duty.

If the words or actions of resignation are unambiguous, an employer is entitled to treat them as such and accept the employee’s resignation on face value at once, but the employer should also consider other circumstances that led to the resignation. There may be circumstances arising due to personality conflicts on the job. Words spoken or actions expressed in temper or under extreme pressure, should be taken into consideration.

In these circumstances, an employer should allow a reasonable period of time to elapse before accepting a resignation at its face value, during which time information may come to light which casts doubt upon whether the resignation was really intended.

If an employer does not look into the circumstances, then they run the risk that something may come to light which shows that it wasn’t reasonable for them to conclude that there was an intention to resign, thus making this an unfair dismissal by default. However, such a reasonable period is likely to be relatively short, such as a day or two. It will not be two or three weeks later when the employee realises, they cannot get another job, or get rejected for benefits.

It should be noted, that although the employer is supposed to make a reasonable investigation to determine if resignation was what the employee meant; it is not a general right to withdraw a resignation intentionally given. When the intention to resign was there then it is entirely at the employer’s discretion to allow it to be withdrawn if the employee asks.

What did they say?

Be careful when communicating with an employee who has given verbal resignation to terminate their employment. We are aware of a case where the employee stated that they were going to resign, so the contracts manager in the heat of the moment told him: “Well you might as well leave now”. The employer believed that the employee had resigned with immediate effect, but the employee claimed that they had been instructed to leave the job by his employer and so therefore claimed that their notice had to be paid in lieu. The courts sided with the employee.

And finally;

What notice should they give?

The statutory notice for an employee with less than 30 days service is nil, but after that it is one week. This only increases if the contract of employment requires more.

If an employee resigns and does not give the required notice then arguably they will be in breach of the law, or the contract, or both. Longer notice periods are designed to give employers time to complete a handover, restructure tasks and recruit. A shortfall in notice is annoying but will not give rise to any claim for the frustration it has caused; however if early leave damages turnover or profitability, aspects that can be proven, then a breach of contract claim may be considered. That said, there is no way of forcing the employee to work their notice.

In some situations, employees give more notice that they need to. This usually damages trust and confidence, and employers are left wondering what they can do. The only way to curtail this is by having a robust contractual clause, such as this within the Notice section;

If the employee gives a longer notice period than that stated above, the Company will deem it as the period of notice stipulated in this contract, unless agreed by the employer in writing. The Company will calculate the termination date based on the date notice is given by the employee and the stipulated notice in this contract from the employee.

Otherwise, the employee has plaid their ace, and must be afforded the opportunity to work, be paid and accrue leave for the remainder of their employment. Reverting to the contract, again, you could put the employee on Garden Leave, or make a Payment in Lieu of Notice. The latter cuts short holiday accrual, but must exist within the contract.