One of the most common topics we are asked about is the employee resignation. There are many myths surrounding resignations…it is time to lay some of these to rest.
Myth one
If an employee becomes Absent Without Leave (AWOL), the employer can assume they have resigned.
There is no legal provision for assumed resignation. An employee has to state they have resigned and in fact, case law has shown that any employee resignation must be clear and unambiguous. Therefore, if an employee becomes AWOL, an employer must follow their disciplinary procedure which may ultimately result in the employer dismissing the employee in their absence.
Myth two
A resignation from an employee must be in writing.
Not always. Unless the contract of employment specifically states that a resignation must be in writing, verbal resignations are valid. Of course, it is preferable to ask the employee to submit the resignation in writing in case there is a dispute as to whether they have resigned.
Myth three
An employer can refuse to accept an employee’s resignation.
If an employee is facing disciplinary proceedings where dismissal is a possible outcome, an employee may resign with immediate effect rather than face dismissal. Some employers do not like this as it means the employee has swerved valid disciplinary proceedings. It is therefore not uncommon for employers to refuse to accept the resignation and insist that the disciplinary proceedings should continue. Strictly speaking, this is not legally possible.
The resignation decision is the employee’s decision alone. An employer can not refuse to accept it. This is no different to dismissal being the employer’s decision, the employee can not refuse to accept that they have been dismissed in accordance with the contract.
However, if an employee does submit their resignation with immediate effect pending disciplinary proceedings, the employer can always make it clear that any reference provided to a future employer will state that the employee resigned pending disciplinary proceedings. In addition, an employer may bring breach of contract proceedings against the employee for failing to serve their contractual notice.
Myth four
If it is the employee’s decision to resign, they can equally decide to retract their notice.
Once a valid resignation has been given by an employee, it cannot be withdrawn without the employer’s agreement. That said, established case law states it is good practice that when an employee resigns in the “heat of the moment”, they should be given the opportunity to withdraw the notice once they have calmed down.
Myth five
An employer is not obliged to pay the employee during their notice period if they are off sick for the full notice period.
The contract of employment should firstly be checked to see whether this sets out any provisions for payment during notice period when off sick such as entitlement to company sick pay. However, if the contract is silent, there are some complicated rules which apply in order to work out the employee’s entitlement. The starting point is to check the notice period which the employer must give to the employee (even if it is the employee who gives notice).
If the employer can terminate the contract by giving statutory notice (one week for every complete year of service up to a maximum of 12 weeks), then if the employee resigns, they are entitled to be paid at their normal hourly rate during the employee’s statutory notice period (which is one week) even if they are incapable of work because of sickness or injury. This weeks pay is essentially a windfall to those employees who would normally only be entitled to receive Statutory Sick Pay (SSP) during their notice period, or even no monies if SSP has been exhausted. For the remainder of the notice period, they would receive payment under the contract so either company sick pay, SSP or potentially nothing if SSP is exhausted.
However, this does not apply where the employee is contractually entitled to a notice period from the employer which exceeds the statutory minimum notice period by at least one week. In those cases, the employee would only be entitled to what is due under the contract, whether this is company sick pay or SSP, or if this is exhausted, nothing.
It is an odd provision which encourages employers to have longer notice periods than statutory in their employee contracts.
Hopefully, this has helped dispell some myths.