Resignations – Debunking the Myths

On 19 July, the government revoked its nationwide ‘work from home if you can’ order. However, the government did not positively order employees back to the office. Instead, it left it up to employers to decide when and how their employees could safely return (if at all).

In some cases, this has led to employers completely remodelling their workforce structures. For example, some employers have continued with their workforce working full time from home, while others have even embraced ‘work from anywhere’ policies, with employees working abroad. For the vast majority of employers across the UK, a hybrid model has been adopted with employees working half the week at home and the other half in the office, leading to greater employee satisfaction and engagement.

However, there are also many employers that have failed to embrace the new normal working practices. And, with many employees reluctant to return to the office, we are reportedly seeing a wave of resignations across the country.

In this briefing note, Aaron Heslop, employment specialist at Rooks Rider, debunks some of the myths around resignations and provides advice to employers relating to their employees:

Myth 1: A resignation must be given in writing

A common misconception is that a resignation must be given in writing by an employee for it to be valid. In fact, the reason a resignation is given in writing is usually because the employment contract requires it. If there is no clause requiring a written resignation, then a resignation from employment would be effective if given orally.

Myth 2: An employer can decide not to accept a resignation and it will not be effective

A resignation is a unilateral act by the employee. Whether the employer accepts it or not does not matter. The resignation would remain effective. However, it is generally advisable for an employer to write to the employee and acknowledge the resignation as it gives the employer an opportunity to clarify leaving arrangements, notice periods and any other relevant post-termination terms such as confidentiality and restrictive covenants.

Myth 3: An employee can withdraw their resignation

Once a resignation has been served by the employee on the employer it cannot be withdrawn by the employee (except in very limited circumstances). An employer may decide to continue to employ the employee if it wishes, but technically the employee would be powerless to withdraw their resignation.

Myth 4: An employer can place the employee on garden leave once they have resigned

An employer cannot do this as a matter of course and will only be able to do so if the employment contract permits it.  If there is not a garden leave clause in the contract and the employer places the employee on garden leave, it would be doing so in breach of contract. This would mean that the employer would not then be able to assert other post-termination terms of the contract which might be important to it, such as confidentiality and non-solicitation of clients and contacts. This could be a costly error to make in relation to sales staff who may have good relationships with the employer’s clients and contacts, who would then be free to approach and poach those clients and contacts after they resign.

Myth 5: An employee who simply stops coming to work has effectively resigned

In such circumstances, the employee has neither resigned nor has the employer terminated their contract. The employee is in breach of contract by not reporting for work and would technically be treated as if they had dismissed themselves. This is called a ‘self-dismissal’. In doing so, they would normally forgo their right to receive a notice payment. However, the employer would need to undertake various steps to try and clarify the situation before taking action either way, as there could be various reasons why the employee is not reporting for work.

If you would like to discuss a situation you are currently dealing with, or for advice on any aspect of employment law, contact Aaron Heslop in our Employment team.

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