When is a resignation not a resignation?

When is a resignation not a resignation?

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Author: Nick Vernon

Applies to: England, Wales and Scotland

High-profile resignations have hit the headlines lately, such as Sepp Blatter's resignation as FIFA President despite his re-election and Nigel Farage's 'un-resignation' as the leader of UKIP.

We look at some common questions about resignations in the employment context.

Can you refuse an employee's resignation?

In short, no.

Whilst it is often thought that employers can reject an employee's resignation if they do not want them to leave, in fact it is not possible to reject a resignation provided the employee has given proper notice to their employer.

In most cases, the employment contract will set out what constitutes proper notice, in terms of the amount of notice to be given by the employee or any particular procedure to be followed. If the employment contract is silent as to the amount of notice to be given, it is an implied term that employees must give 'reasonable notice' to their employer, which will always be at least one week.

An employer may have certain rights under the contract of employment that it can invoke when an employee resigns, such as placing them on garden leave or paying them in lieu of notice so that their employment terminates earlier, but it cannot refuse the resignation if notice has been properly given.

Can an employee resign with immediate effect?

Practically speaking yes, but, technically an employee doing this will be acting in breach of their contract, as they are not giving the proper notice to terminate their employment. There are a number of options available to employers in such a scenario:

  • the employer could still accept the resignation (on the basis that it might suit the employer to avoid paying the employee for their full notice period and/or the employer might not have the enthusiasm to try to compel the employee to honour their notice period);
  • the employer could refuse to accept the resignation and hold the employee to their notice period. If the employee still leaves with immediate effect, the employer could then try to pursue a claim for breach of contract against the employee. In practice, it is relatively rare for employers to pursue such legal action, but this could be appropriate on some occasions, for example where an employer incurs extra costs to replace the employee during their notice period or suffers some other financial loss as a result of the employee's refusal to work their notice period;
  • the employer could refuse to accept the immediate resignation and seek an injunction from the courts to enforce the employment relationship as continuing for the duration of the proper notice period. This is what was done in the case of Sunrise Brokers LLP v Rodgers in which a senior executive sought to resign with immediate effect (without giving his 12 months' contractual notice) to join a competitor. However the employer, Sunrise, refused to accept his breach of contract and informed him that it would withhold his salary for as long as he refused to return to work. When he refused, Sunrise won an injunction from the High Court requiring the executive to abide by the terms of his employment contract for a relevant notice period before his employment properly terminated. Whilst most employers are unlikely to be willing to go to these lengths, this is a useful tactic to bear in mind in relation to senior employees who have the potential to cause significant disruption and who try to leave without giving the proper notice.

What if the employee resigns before or during a disciplinary process?

It is not uncommon for an employee facing disciplinary allegations to resign before the disciplinary process is completed to avoid having a (gross) misconduct dismissal on their record.

If the resignation is with immediate effect, the same rules as above will apply but it is probably more likely that an employer would be prepared to accept an immediate resignation (not least because it avoids the need to actually dismiss the employee). If the employee resigns with notice, the employer will be within its rights to conclude the disciplinary process, which might result in the employee's earlier dismissal.

Can an employee withdraw their resignation?

The short answer is no, as once an employee has given proper notice it is effective and can only be withdrawn if the employer agrees (and there is no obligation for an employer to agree to the withdrawal). However there are always exceptions.

What if the employee resigned in the 'heat of the moment'?

Case law has developed a limited exception to the general rule that an employee cannot withdraw their resignation if notice has been properly given, which generally applies to cases where an employee resigns 'in the heat of the moment', for example, when said in anger during an argument or when under an unusual amount of pressure.

In such cases, employers are expected to give the employee a reasonable period of time (which maybe as much as a couple of days) to calm down and reconsider whether they want to go ahead with the resignation. Failing to do so and treating the employee as having resigned, could ultimately result in a finding of unfair dismissal as a Tribunal might find that there was not a valid resignation but that instead the actions of the employer actually amounted to a dismissal.

For this reason it is worth following up on any surprise resignation to make sure that the employee means what they say.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Nick Vernon

Associate

03700 86 4025

Nick is an associate in the employment team. Nick is experienced in advising clients on all aspects of employment law, including settlement agreements and termination, disciplinary and grievance issues, discrimination and redundancy & reorganisation.

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