Resigned to the loss of an employee? General advice about when a resignation is not a resignation

Constructive Dismissal

It is very important for employers to be careful when accepting a resignation from an employee. In certain circumstances an employee’s resignation can amount to a constructive dismissal. When an employee resigns because of a breach of contract by the employer, and this breach makes it near impossible for the employee to continue working, then that can be deemed to be a constructive dismissal. If this happens the employee will be able to make a claim against the employer.

In order for this claim to succeed, the employee requires to demonstrate that:

  1. There has been an actual or anticipatory breach of contract by the employer;
  1. The breach was serious enough to justify the employee’s resignation without notice;
  1. The employee resigned in response to this breach; and
  1. The employee must have resigned shortly after the event. If the employee waits too long to resign, he will be deemed to have accepted the breach by the employer.

Unambiguous resignation

There are many situations where an employee shows clearly, usually by their choice of words, that they intend to end their employment with the employer. Generally when an employee says, “I am resigning”, or words to this effect, these words will be taken at face value by a tribunal. However there are special circumstances when even these words will not amount to a resignation. For example employers should be cautious of words which are said in the heat of the moment or words which an employee has been pressured into saying by an employer or other external forces. In such situations it is recommended that the employer allows a reasonable period of time for cooling off. What is deemed to be a reasonable period of time will always depend on the circumstances. Once a suitable time has passed, a further inquiry into whether the words were meant or not should be carried out by the employer.

Ambiguous resignation

Conversely there are many examples where it is not so clear cut whether the employee has resigned or not. These can be situations such as when an employee states “I’ve had enough of this” (or similar, less friendly expressions) or simply walks out of the door without saying a word and not returning for a number of days. If it is not expressly clear what the intentions of the employee are, by either his words or his conduct, then it would be prudent for the employer to contact the employee and ask if it was their intention to resign. Again it would be sensible to allow a reasonable cooling off period before such an approach is made. Such a step will make it very hard for an employee to later claim that they were unfairly dismissed.

Tips for dealing with resignations

  1. Whether an employer is unhappy or relieved about an employee’s heat of the moment or ambiguous resignation, it should make a follow up effort to ensure that it is the employee’s final decision.
  1. An employer should be aware that if their conduct had a significant effect on the resignation, then the employee can be said to have been constructively dismissed.

Even the most clear cut resignations can be found to have been dismissals. When an employee is told they have resigned, and in fact they have not, then they will have likely been dismissed, often unfairly. Be wary!

Andrew Wallace
Trainee Solicitor – Employment Law

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