Guides & Advice

How do you deal with an unexpected resignation?

Published: 12th May 2021
Area: Employment

We’ve all seen the scene in the movies, where the beleaguered employee argues with the manager before triumphantly declaring “I quit!” typically followed by the immediate dropping of an apron or name tag on the floor and walking out.

Although this scenario may seem unlikely in real life, heat of the moment resignations do occur; therefore, good employers must know how to handle them appropriately to head off the danger of costly employment tribunal claims.

Should an employer accept a heat of the moment resignation?

There is very little statutory control over the method by which an employee should give notice of resignation. The only stipulation in statute is that it must be “clear”. However, many employment contracts will contain provisions for notice of resignation, almost always specifying that it must be given in writing.

Therefore if, as in the scenario described above, an employee simply states in an argument that they wish to quit, this would not amount to valid notice. In this instance an employer should not immediately accept or reject this resignation due to the incorrect method of notice, but should tread carefully in handling the situation.

Explore why the employee has resigned

A wise move for an employer would be to take a step back and to find out why an employee is angry or upset, and determine what led to their decision. If, upon reflection it turns out that things were said in “the heat of the moment”, an employer could utilise a cooling off period wherein an employee might be permitted to rescind their decision.

Although it may seem unlikely, it is these sorts of situations that may be the difference between an ex-employee choosing to make an employment tribunal claim against their former employer for unfair constructive dismissal. Even if the employer has acted in accordance with the law, frivolous or meritless claims can be a preventable and unwelcome cost, and must be robustly defended all the same.

If, having considered the wider circumstances the employer believes it would be best if the employee did indeed resign, they should be informed of how to formalise their decision by giving notice in writing. For some employers an unexpected resignation of a problematic employee can be a welcome development, and as long as they ensure that procedures are adhered to, there should be no reason to delay or prevent it.

A conscientious employer should ensure that managers have training in conflict resolution, as understanding the reason for the employee’s apparent unhappiness will allow the situation to be handled calmly and in accordance with grievance policies and reduce the risk of unfair constructive dismissal claims.

Common misconceptions

It is mistakenly believed by many that an employer can refuse to accept a resignation from an employee.

In fact employers must accept a resignation following receipt of valid notice. However, where the employee gives short notice in breach of contract, it will not be effective if the employer chooses not to accept it. Likewise, where the employer gives short notice in breach of contract, the employee may choose not to accept this, although such cases will be rare in practice.

It is important to know that neither the employee, nor the employer is able to unilaterally rescind a valid notice of resignation.

Both parties must agree to the notice being withdrawn, so employees must be aware of the risk that their employer may not allow them to rescind their resignation following a change of heart. Put simply, employees must be sure they are truly willing to leave their role before notifying their employer of their resignation, lest they reconsider their decision only to discover that their employer is quite happy to see them go.

What happens if an employee refuses to work their notice?

It is not uncommon for unhappy employees who are leaving an organisation to refuse to work their notice period. This may be for a variety of reasons, ranging from an allegation of a hostile workplace, to the desire to start at a new employer sooner.

Unfortunately it is often very difficult for employers to force an employee to work their notice period if they do not wish to, even If they have an important or business critical role. The employer could of course sue the employee for breach of the notice clause of their employment contract, but this is a costly and time consuming measure. It would also fall to the employer to quantify the exact loss caused by the employee not working their notice period, and to establish a causal link between the breach of contract and the loss. Proving the loss and the causation on the specific employee will be very difficult in most instances, and therefore employers rarely take this option.

Alternatively, the simpler and most often used response is for employers to withhold pay for the unworked notice period.

Contact us

If you’re concerned about dealing with an unexpected resignation then our employment team can guide you through your options.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

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